Garcia v. Island Program Designer, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-1853

JUAN ANTONIO GARCIA, ETC.,
Plaintiff, Appellee,

v.

ISLAND PROGRAM DESIGNER, INC.,
Defendant, Appellee.

v.

UNITED STATES OF AMERICA,
Intervenor, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

No. 92-1889
IN RE:
UNITED STATES OF AMERICA,
Petitioner.

ON PETITION FOR WRIT OF MANDAMUS

[Hon. Gilberto Gierbolini, U.S. District Judge]

Before
Breyer, Chief Judge,

Torruella and Cyr, Circuit Judges.

Steven W. Parks, Attorney, Tax Division, Department of Justice,

with whom James A. Bruton, Acting Assistant Attorney General, Gary R.

Allen and Bruce R. Ellisen, Attorneys, Tax Division, Department of

Justice, were on brief for United States of America.
Carlos J. Morales-Bauza with whom Jesus R. Rabell-Mendez and

Rossello-Rentas & Rabell-Mendez were on brief for Juan Antonio Garcia,

in his capacity as Insurance Commissioner of Puerto Rico.

September 14, 1993

BREYER, Chief Judge. This appeal requires us to

resolve a conflict between 1) a federal statute that gives

federal tax claims first priority to a bankrupt company's

assets, 31 U.S.C. 3713, and 2) a Puerto Rico "insurance

company liquidation" statute with filing deadlines that can

force those federal claims to the end of the priority queue.

P.R. Laws Ann., tit. 26, 4019(2). A special federal

statute, governing federal pre-emption of state insurance

laws, 15 U.S.C. 1012(b), would require us to resolve the

conflict in favor of Puerto Rico's law -- if that special

federal statute applies. But, a recent Supreme Court case,

interpreting that special law, indicates that it does not

apply. Department of Treasury v. Fabe, 113 S. Ct. 2202

(1993). Hence, given ordinary pre-emption principles, the

federal statute governs. We reverse a district court

determination to the contrary.

I

Background

Puerto Rico's law permits the Commonwealth's

Insurance Commissioner to act as trustee for an insolvent

insurance company, to liquidate its assets, and to set a

deadline for the filing of "proofs of claim" to those

assets. P.R. Laws Ann., tit. 26, 4002, 4019. In

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February 1987, the Insurance Commissioner began proceedings,

in a Commonwealth court, to liquidate the assets of Island

Program Designer, Inc. ("IPD"), a health maintenance

organization. The Insurance Commissioner set May 19, 1988,

as the filing deadline for "proofs of claim."

On June 1, 1989, about one year after the filing

deadline, the federal Internal Revenue Service filed with

the Insurance Commissioner a formal "proof" of its claim

against IPD for $53,000 (representing federal tax liens that

the IRS, between 1982 and 1985, had asserted, and perfected,

on IPD's assets). In May 1991, the IRS intervened in the

Commonwealth court liquidation proceedings. 26 U.S.C.

7424. It asked for the $53,000, as to which a federal law

gave it first priority. 31 U.S.C. 3713. It also now

tells us that, without a first priority, it will be unable

to collect any of the money owed.

The Insurance Commissioner opposed the IRS claim

on the ground that the IRS had missed the (May 19, 1988)

deadline for filing formal proofs of claim. He pointed out

that Puerto Rico's insurance company liquidation statute

says that claims for which proofs are filed after the

deadline shall not be paid until all timely-filed claims

have been "paid in full with interest." P.R. Laws Ann.,

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tit. 26, 4019(2). And, in his view, Puerto Rico's

priority system trumps the federal statute.

At this point, the IRS removed the case to federal

court. 28 U.S.C. 1441(b), 1444. The Insurance

Commissioner asked the district court to "abstain" from

deciding the legal issues, and to remand the case to the

Commonwealth court. The district court then wrote an

opinion deciding the basic question and holding that Puerto

Rico's priority law, not the federal priority statute,

governs. It also remanded the case to the Commonwealth

court. The IRS now asks us to review, and to reverse, the

remand order.

II

Appeal or Mandamus?

We are not completely certain why the district

court, having decided the major legal issue in the case,

decided to remand it. It may have done so as an

administrative matter, to permit the Commonwealth court to

enter a final judgment; or because it believed the

controversy involved other legal issues that it should

"abstain" from deciding; or simply because "remand" was the

form of relief that the Insurance Commissioner had

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requested. Whatever the reason, the fact of remand raises a

technical question about the form of review: Can the IRS

simply appeal the remand order or must it seek a writ of

mandamus?

The problem arises out of a Supreme Court case,

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

(1976), in which the Court considered the scope of a

statute, 28 U.S.C. 1447(d), that appeared to bar appellate

review of all remand orders. The Court held that the

statute's "review bar" applies only to a statutorily-

limited, previously-mentioned set of remand orders, namely,

those in which remand rests upon a defect in the removal

proceeding. See 28 U.S.C. 1447(c). The Court, referring

to an 1875 case, Railroad Co. v. Wiswall, 90 U.S. (23 Wall.)

507 (1875), also held that other remand orders, while

reviewable, were not "final" orders and therefore were

reviewable only through mandamus. Id. at 508. The remand

order in this case falls outside the scope of the statutory

"review bar." But, it would seem to fall within the scope

of the Supreme Court's holding that review must take place

through mandamus, not appeal.

The IRS points out that several appeals courts

have created an exception to Thermtron for (and permitted

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appeal of) reviewable remand orders that amount to

"collateral orders." See, e.g., McDermott Int'l Inc. v.

Lloyds Underwriters of London, 944 F.2d 1199, 1204 (5th Cir.

1991) (permitting appeal of remand order based on separable

issue presented by a contract's "forum selection" clause),

cert. denied, 113 S. Ct. 2442 (1993); Foster v. Chesapeake

Ins. Co., Ltd., 933 F.2d 1207, 1211 & n.6 (3d Cir.) (same),

cert. denied, 112 S. Ct. 302 (1991); Karl Koch Erecting Co.

v. New York Convention Ctr. Dev. Corp., 838 F.2d 656, 658-59

& n.1 (2d Cir. 1988) (same); Pelleport Investors, Inc. v.

Budco Quality Theatres, Inc., 741 F.2d 273, 277-78 (9th Cir.

1984) (same). It adds that we should recognize an exception

permitting appeal here.

We are aware of arguments advanced for modifying,

or finding exceptions to, Thermtron. Commentators have

argued that the Supreme Court should have departed from its

earlier, nineteenth-century practice and found remand orders

"final" (hence, in principle, appealable) because 1) they

finally dispose of the federal proceedings; and, 2) there is

little practical reason not to permit appeal of those remand

orders that fall outside section 1447(d)'s statutory bar.

15A Charles A. Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure 3914.11, at 702-18 (2d ed.

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1991). Critics have also pointed to anomalies. Suppose,

for example, that a federal district court, wishing to

abstain pending resolution of state proceedings, embodies

its decision in a stay of federal proceedings. The stay is

appealable. Moses H. Cone Memorial Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 8-10 (1983). Suppose that same court

embodies its decision in a remand (and, say, the plaintiff

reserves the right to return to federal court, see England

v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411

(1964)). The parties would have no appeal as of right, but

would have to seek "discretionary" review through mandamus.

Cf. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943)

(mandamus is discretionary). The result is anomalous.

Corcoran v. Ardra Ins. Co., Ltd., 842 F.2d 31, 34-35 (2d

Cir. 1988). And, one can find other examples of practical

review difficulties, particularly when, say, a district

court couples dismissal of a removed federal claim with

remand of pendent state claims. 15A Wright, Miller & Cooper,

supra, 3914.11, at 710-18; see also In re Amoco Petroleum

Additives Co., 964 F.2d 706 (7th Cir. 1992).

Despite these difficulties, we do not believe we

can find an exception that fits the present case. For one

thing, the Supreme Court's language is rather absolute. It

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says clearly that a remand order is not "final." The Court

rests its decision upon older cases that reflect the

apparently then-common practice of appellate courts using

mandamus, rather than appeal, to review the lawfulness of a

lower court's refusal to assert jurisdiction (of which a

remand is one variety). Wiswall, 90 U.S. (23 Wall.) at 508.

The Court, more recently, has approved circuit court use of

mandamus as a vehicle for review. Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 355-56 (1988). And, lower courts,

even when faced with anomalies, have concluded that the

Supreme Court meant what it said. In re Amoco Petroleum

Additives Co., 964 F.2d at 713; Corcoran, 842 F.2d at 34-35.

For another thing, we do not believe it possible

to apply a "collateral order" exception here. See cases

cited at pp. 5-6, supra. The "collateral order" doctrine

permits parties to appeal (as "final decisions," 28 U.S.C.

1291) orders that "determine" a "disputed" and "important"

issue "separate from the merits of the action," which are

"effectively unreviewable" on a later appeal. Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978). The record

here does not set forth the relation of the remand to any

remaining issues in sufficient detail for us to say with

confidence that the remand order rests on the determination

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of an issue "separate from the merits of the action." But,

more importantly, Thermtron and Wiswall themselves seem to

involve "collateral orders." In Thermtron, the Court

reviewed (through mandamus) a district court order

(erroneously) remanding the case to a state court on the

ground that the state court would handle the case more

expeditiously. That remand decision determined an

important, separate, disputed issue that could not easily

have been reviewed later through appeal. Similarly, in

Wiswall, the Court reviewed (through mandamus, prior to the

enactment of 1447(d)) a lower court's important, separate,

disputed decision to remand the case to state court for

jurisdictional reasons. The upshot is that we cannot find a

"collateral order" exception large enough to fit our case

that does not also swallow up (and thereby simply disregard)

the general rule.

Finally, and perhaps most importantly, we need not

further complicate the law with additional exceptions

because the case before us meets Thermtron's criteria for

the issuance of mandamus. This case, like Thermtron,

involves the "traditional use of the writ [of mandamus] in

aid of appellate jurisdiction to compel" a lower court "to

exercise" its jurisdictional "authority when it is its duty

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to do so." Roche, 319 U.S. at 26, quoted in Thermtron, 423

U.S. at 352. Mandamus here, like mandamus in Thermtron, is

not a substitute for appeal, cf. Roche, 319 U.S. at 26-31;

Will v. United States, 389 U.S. 90, 97 (1967); Schlagenhauf

v. Holder, 379 U.S. 104, 110 (1964), for Thermtron itself

blocks immediate appeal; and eventual appeal through the

Commonwealth court system does not promise the IRS

meaningful review of the federal district court's critical

legal determination.

Of course, even where a court of appeals has the

"power" to issue mandamus, that relief is "discretionary."

16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper &

Eugene Gressman, Federal Practice and Procedure 3933, at

213 (1977). Appellate courts typically exercise this

discretion only in somewhat unusual instances, In re

Pearson, 990 F.2d 653, 656 (1st Cir. 1993), and where the

petitioner's rights are "clear and indisputable." Bankers

Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953); In re

Pearson, 990 F.2d at 656. Nonetheless, in our view, the

IRS's right to relief here, after the Supreme Court's

decision in Fabe, supra, is reasonably clear; its need for

relief is fairly urgent; and, the fact that the remand falls

outside 1447(d)'s review bar itself helps to make the

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remand unusual. Taken together, these circumstances justify

exercising our "discretion" in favor of issuing the writ.

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III

Pre-emption

The IRS argues that the federal court was wrong

not to retain the case and order payment of the $53,000

because federal law governs the case and requires that

payment. The federal law in question is a statute, 31

U.S.C. 3713, which says:

A claim of the United States Government
shall be paid first when . . . a person
indebted to the Government is insolvent
and . . . an act of bankruptcy is
committed.

The Insurance Commissioner agrees that this statute would

entitle the United States to priority (and, apparently to

payment) were it not for a Commonwealth statute that governs

insurance company liquidations. That statute, as we have

said, instructs the Insurance Commissioner to set a deadline

for presenting proofs of claims, and it adds:

Proofs of claim may be filed subsequent
to the date specified, but no such claim

shall share in the distribution of the

assets until all allowed claims, proofs

of which have been filed before said

date, have been paid in full with

interest.

P.R. Laws Ann., tit. 26, 4019(2) (emphasis added).

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These two statutes conflict. We cannot reconcile

the federal statute with the Commonwealth statute (say, by

reading it as limited to instances of compliance with state

procedures), for the courts have consistently interpreted

the federal statute as overriding state procedural

requirements of the sort here at issue (at least where a

trustee has appropriate notice of federal claims). See,

e.g., Brown v. Coleman, 566 A.2d 1091 (Md. 1989) (federal

priority cannot be superseded or impaired by state law);

United States v. Boots, 675 F. Supp. 550 (E.D. Mo. 1987)

(estate representative with actual, but not formal, notice

of federal government's claim must pay that claim first);

United States v. Snyder, 207 F. Supp. 189 (E.D. Pa. 1962)

(under predecessor statute, United States could file claim

long after distribution of estate in probate court); United

States v. Backus, 24 F. Cas. 932 (C.C.D. Mich. 1855) (No.

14,491) (under predecessor statute, state proof of claim

statutes were not binding on United States). If ordinary

pre-emption principles apply, then the federal statute

governs. Gibbons v. Ogden, 22 U.S. 1 (1824); U.S. Const.

Art. VI, cl.2.

The pre-emption inquiry here is more complicated,

however, because the Insurance Commissioner argues that the

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Commonwealth's law regulates insurance companies and (as we

shall assume for argument's sake) that IPD is an insurance

company. A special federal statute says:

No Act of Congress shall be construed to
invalidate, impair, or supersede any law
enacted by any State for the purpose of
regulating the business of insurance . .
. unless such Act specifically relates
to the business of insurance . . . .

McCarran-Ferguson Act 2(b), 15 U.S.C. 1012(b).

This statute, if it were to apply, would compel

the opposite result: the Commonwealth's priority system, not

the federal system, would govern. The basic legal question

before us, then, is whether or not the statute applies. Is

the Commonwealth's procedurally-linked priority rule a "law

enacted . . . for the purpose of regulating the business of

insurance"? The district court, relying on the Sixth

Circuit's holding in Fabe, decided that the answer to this

question was "yes." Fabe v. Department of Treasury, 939

F.2d 341 (6th Cir. 1991). The Supreme Court, however,

granted certiorari in Fabe. And, that Court has reached a

decision that leads us to reverse the district court.

Department of Treasury v. Fabe, supra.

The Supreme Court, in Fabe, considered separately

individual provisions in a state insurance-company-

liquidation statute, which provisions provided sequential

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priority for (1) administrative costs; (2) specified wage

claims; (3) policyholders' claims; (4) general creditors'

claims; and (5) government claims. The Court held that some

of these priority provisions (all comprising parts of the

larger statute) amounted to laws "enacted for the purpose of

regulating the business of insurance," but others did not.

It said that "to the extent" a priority provision "regulates

policyholders," it "is a law enacted for the purpose of

regulating the business of insurance." Fabe, 113 S. Ct. at

2212. But to "the extent that it is designed to further the

interests of other creditors, . . . it is not a law enacted

for the purpose of regulating the business of insurance."

Id.

The Court then found that the state statute's

first priority for "the expense of administering the

insolvency proceeding" was an insurance-regulating

provision. It said that the provision "is reasonably

necessary to further the goal of protecting policyholders"

because, without such a provision, "liquidation could not

even commence." Id. In contrast, the Court found that the

"preferences conferred upon employees [for wage claims] and

other general creditors" were not insurance-regulating

provisions. Id. The Court said that such preferences "do

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not escape pre-emption because their connection to the

ultimate aim of insurance is too tenuous." Id.

The Court's reasoning and examples lead us to

conclude that the federal statute pre-empts the

Commonwealth's filing-deadline-related priority provision.

The filing deadline (with its penalty of subordination for

late claims) cannot be said to directly "regulate[]

policyholders," for it is neither directed at, nor necessary

for, the protection of policyholders, as the Court required.

The provision helps policyholders only to the extent that

(and in the same way as) it helps all creditors. That is to

say, by penalizing late-filers, the Commonwealth provision

may bring about more speedy, orderly liquidation

proceedings, thereby (perhaps) reducing the risks (and

costs) of extending credit to the company.

Nor can one say that the Commonwealth's filing

deadline provision is necessary for the protection of

policyholders. The Court in Fabe found that a priority for

"administrative expense[s]" was necessary to protect

policyholders, but, because without such a priority,

liquidation might never occur. The Commonwealth's filing

deadline at issue here, however, is not necessary for a

liquidation. Without it, liquidation would still prove

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manageable. At worst, the trustee's job would become

slightly more difficult. He would have to provide, for

example, the United States with a first priority as long as

he had, say, actual notice (or "constructive" notice through

recording) of the claim, even if he did not have formal

notice through a "proof of claim" filed directly in the

liquidation proceeding. See cases cited at p. 12, supra.

Relieving the trustee of the burden of searching for

recorded liens provides policyholders with only indirect,

speculative benefit of the kind that the Fabe Court found

far too tenuous to prevent pre-emption. We conclude that

the special federal pre-emption statute does not apply.

Normal pre-emption rules do apply. And, federal law must

govern.

The Insurance Commissioner makes one further

argument. He says that, even if the district court was

wrong about federal pre-emption, the court was still right

to remand the case. He says the remand rested upon the

district court's authority to "abstain" from exercising its

jurisdiction in order to allow the Commonwealth court to

conduct further insurance company liquidation proceedings.

See Burford v. Sun Oil Co., 319 U.S. 315 (1943); Gonzalez v.

Media Elements, Inc., 946 F.2d 157 (1st Cir. 1991)

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(abstaining to permit resolution, in Commonwealth

liquidation proceeding, of a tort claim against insolvent

insurance company).

The problem with this argument lies in the record

before us. Burford holds that federal courts should abstain

where further federal proceedings would likely decide a

"difficult" state law question or would disrupt state

efforts to establish coherent and important state policy.

Burford, 319 U.S. at 331 & n.28; Bath Memorial Hosp. v.

Maine Health Care Fin. Comm'n, 853 F.2d 1007, 1013-14 (1st

Cir. 1988); see also Fragoso v. Lopez, 991 F.2d 878, 882-85

(1st Cir. 1993). Nothing in the record before us explains

how, or why, further federal proceedings would create any

such problems. Thus, it offers no justification for court

abstention based on Burford.

For these reasons, the appeal is dismissed, and

the petition for mandamus, setting aside the district

court's remand order, is

Granted.

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