*1 particular government program. conclusion, properly court loan BJC In quali- prove loan-making ability did not that its entitled to appellees were found that (or impaired respects in gener- was other in First Amendment immunity on BJC’s fied al) banking clearly es- or that its activities other than claim, was not the law because government making guaranteed of a the of summary debarment tablished injured. coerce loans was in order to government contractor dispute a civil favorable settlement concerning I concur in the decision al- contractor’s First infringe upon the leged right denial of of access to the right of access to the courts. Amendment courts. The defendants tried to force the Nonetheless, dispute concerning to settle the the appellees’ link between bank the filed, rights by using suit was as a First Amendment cows before actions and BJC’s cutting guaran- did the threat of off loan Appellees’ actions lever is tenuous best. opinion recognizes fully defend- tees. This court’s in fact dissuade BJC from not dispute. improper. attempt this was But the ing position in the Ferris cow its agency in this case was unsuccessful. The filed suit penalty of debarment bank, infringe upon BJC’s and the case was tried. so severe as to not lose rights any way. in More BJC did not the benefit access to First Amendment rather, defendant, en- prevail on its First Amend- the courts but as a importantly, to claim, the court as a forum in joyed must demonstrate that benefit of ment BJC clearly dispute. to settle its BJC’s es- which appellees’ actions violated rights. Amendment Har- tablished First Fitzgerald,
low appellees’ actions
The connection between rights First Amendment is far
and BJC’s appellees’ offi- to overcome
too attenuated immunity.
cial INDUSTRIES, INC.,
In re DECORATOR Solomon, CONCLUSION corporation; Michael an in a Johnson, individual, dividual; Robin an reasons, judgment foregoing For the Petitioners. is affirmed. of the district court No. 92-6381. AFFIRMED. Appeals, Court of United States GODBOLD, Eleventh Circuit. concurring:
specially Dec. opinion as I in the court’s insofar concur reached on sum- it affirms the conclusion judgment that BJC suffered no loss
mary property- interest. liberty in decision that no
I concur plain- I do so because
interest was denied. injury demonstrate the kind of
tiff did not liberty interest. Its evidence support
to a only it the benefit of the
showed lost cases, retaliatory prosecution prison compel offi- different lieve that Matzker legitimate purpose reasons that the in in this case for the same result retaliatory prosecution cer in had no Matzker distinguish- are cases prisoner seeking to abandon his to force the Reasonable, objective public above, officials case, able. appellees’ position present discussed In the as claim. expected have been could not dispute sought appellees to settle the Ferris cow analogize prisoners’ rights about to the a case duty involving legitimate their reasons in a financial rela- of a bank involved situation protect public fisc. Moreover, government. tionship with the *2 Clark, Jr., Amy Myers, K. John W. Scott, PC, Ala., Birmingham, Clark Ter- & Klett, Lieber, Murphy, Rooney rence H. & Pittsburgh, Pa., petitioners. Schorling, for Whitaker, Walker, Carey H. John F. Sad- P.C., ler, Sullivan, Sharp, Herring & Bir- Ala., for mingham, Lillie Sue Carter. Palmer, Lange, Simpson, A. Timothy Somerville, Ala., Birmingham, Robinson & of NC. BCBS Macoy, Jr., A. H. and William Rob- Cecil Gardner, Cabaniss, Johnston, inson, Dumas Ala., O’Neal, Birmingham, & for John Al- den Ins. Co. Life BIRCH, Before JOHNSON, Judge, and Senior Circuit *, Judge. Senior District THOMAS JOHNSON, Judge: Solomon, Michael Robin Petitioners John- Industries, (“Deco- Inc. son and Decorator rator”) petition this for a Court writ of mandamus.
I. STATEMENT OF FACTS employed by Lillie Sue Carter was surgery Decorator when she underwent July surgery, After she 1989.1 received work, permission return to medical but work, before she could return to Decorator laid her off. Decorator informed her that coverage she could continue her medical employee plan under Decorator’s benefits (the “Plan”) if paid portion she of her premium. 1, 1990, Plan’s
Until March
insurance
carrier
Blue Cross and Blue Shield of
(“Blue Cross”). On March
North Carolina
changed the
in-
Decorator
Plan’s
carrier, substituting John Alden
surance
(“John Alden”)
Company
Life Insurance
*
Thomas,
tackling
U.S. Dis-
true to avoid
the merits under the
Honorable Daniel H.
Senior
Alabama,
Judge
assessing jurisdiction."
District
trict
sitting by
for the Southern
ruse of
Jones Alexan
designation.
Cir.)
der,
(5th
curiam),
(per
609 F.2d
denied,
cert.
determining
we have
1. In
whether
mandamus,
"allegations of the
to enter a writ of
frivolous,
Complaint,
patently
are taken
unless
paid premiums
remanded Carter’s claims
Carter
Decora-
for Blue Cross.
tor to
proceedings.
hos-
state court for further
coverage until she was
Plan
continued
29, 1990. Before
again on March
pitalized
petitions
Decorator now
for a
hospital,
received as-
reentering the
Carter
writ mandamus
to 28 U.S.C.A.
that she was cov-
from Decorator
*3
surances
(1966)directing
the district court to
§
Plan, and that she would be
under the
ered
portion
remanding
vacate that
its order
by
insurance carrier.
picked up
the new
claims to state
Carter’s
court.
However,
presented with Carter’s
when
expenses
medical
incurred
claims for
II. ANALYSIS
rehospitalization,
conjunction with Carter’s
power
We do not have the
to review
stating
payment,
that
Alden refused
John
the district court’s remand order. Under
pre-existing
not covered for
Carter
1447(c) (Supp.1992),
28 U.S.C.A.
the dis
§
conditions.
may
trict court
remand a case back to state
1, 1990,
May
complaint
filed a
On
Carter
any
judg
court
at
time before final
“[i]f
Decorator,
against
state court
in Alabama
appears
ment it
that the district court lacks
misrepre-
contending that Decorator had
subject
jurisdiction.”
matter
Unless the
concerning
coverage
under
facts
sented
Rights
case
a claim under
involves
the Civil
answered, denying
the Plan. Decorator
Act,
remanding
order
a case
to
“[a]n
raising
affir-
allegations and
Carter’s
court from which it was removed is
State
claims
mative defense that all of Carter’s
appeal
not reviewable on
or otherwise.”
by
Employee
Retire-
preempted
were
1447(d).
§
1974,
Security Act of
ment Income
Products,
In Thermtron
Inc. v. Her
(“ERISA”).
amended
336,
584,
mansdorfer, 423 U.S.
96 S.Ct.
3, 1991,
a third-
April
Decorator filed
On
(1976),
Supreme
complaint against Blue
and
party
Cross
exception
carved out a narrow
to this Con
1991,
Alden,
3,May
and on
Blue
John
gressional
prohibiting appellate
mandate
the case to
and John Alden removed
Cross
orders, holding
review of remand
that an
ground
court on the
federal district
appellate
may
court
review a district
against Decorator and Dec-
Carter’s claims
if
court’s remand order
the remand is not
and
against
claims
Blue Cross
orator’s
1447(c).
350,
made
at
Id.
§
preempted by ERISA.
Alden were
John
However,
at
“remand orders
593.
re-
May
Carter moved to'
On
1447(c)
invoking the
issued under
and
§
court,
March
mand the case to state
and on
grounds therein ... are immune from re
granted the mo-
the district court
view.” Id. at
Finding
part.
that Decorator’s
tion
court
remanded
district
Carter’s
against
and
third-party claims
Blue Cross
against
claims
Decorator to state court un-
“separate
indepen-
and
John Alden were
1447(c),stating that it was
der
“without
§
from
claims
Decora-
dent”
Carter’s
original
Be-
jurisdiction of the
action.”
tor,
that removal was
the district court held
court’s remand order was
cause the district
1441(c).2 The
proper under 28 U.S.C.A. §
1447(c)
or-
issued under
and because the
concluded that Carter’s
district court also
jurisdiction
lack of
as the rea-
der invoked
“improvi-
against Decorator were
claims
remand,
exception
son for
the Thermtron
and that the district court
dently removed”
apply. Accordingly, this Court
jurisdiction” to hear those
was “without
may
the remand
not review
order.
jurisdic-
The district court retained
claims.
Nevertheless, Decorator
third-party claims
advances
tion of Decorator’s
Alden,
why
reasons
we should review the
against Blue Cross and John
and two
action,
1441(c) (Supp.1992) provides:
case
claims or causes
entire
2. 28 U.S.C.A. §
may
may be removed and the district court
independent
separate
claim
Whenever a
therein, or in its discre-
jurisdiction
determine all issues
tion,
of action with the
con-
or cause
title,
may
joined
all matters in which state
remand
section 1331 of this
is
ferred
predominates.
law
with one or more otherwise non-removable
review,
First,
is
author-
Decora
eludes
Court without
in this case.
remand order
court’s decision.
ity to review
district
district
the basis of the
argues
tor
i.e„ that it lacked
remand
order—
hear Carter’s
III. CONCLUSION
state law
jurisdiction
clearly erroneous. Whether
claims—was
petition
Decorator’s
for a writ of manda-
correctly determined its
court
DENIED.
mus is
prohibit
We are
is irrelevant.
BIRCH,
Judge, dissenting:
reviewing a remand order
lack
ed from
when
jurisdiction even
follow,
regret
the reasons that
I
For
clearly
is
erroneous.
court’s -determination
join
majority.
It is true that
I cannot
Nacionales de Co
v. Aerovias
Calderon
following
the district court asserted the
*4
599,
(11th Cir.) (re
lumbia,
601
F.2d
929
sentences denominated as
“conclu-
two
notwithstanding
not reviewable
mand order
sion”:
court’s erroneous determination
district
foregoing,
on the
the court con-
Based
—
denied,
jurisdiction),
lacked
cert.
that it
jurisdiction
cludes that it is without
-,
376,
112
have exercised 1441(c) to remand such claims.
U.S.C. § its order on
The district court entered not have the bene-
March and did
fit of our court’s decision
Sanson
(11th
Corp.,
Cir.1992), July published on which compared the district court
1992. Had asserted in this case with
“main action” Sanson, may conclud-
that in she well have preempted and not that such claim was
ed
remanded the action. logi foregoing, the most upon
Based is remand in this case
cal conclusion (c) pursuant to 28 U.S.C.
was made § 1441 (c). U.S.C.
and not to 28 § 1447 *5 so, arguably If this is then remand (i.e., exception
fall within the Thermtron
remand not made 14J7(c)). majori As noted
U.S.C. §
ty, only remands made under Thermtron 1447(c)are immune
pursuant to 28 U.S.C. § The fact that
from review. (c) only
court alluded to 28 U.S.C. § 1441 persuades me that
as her for remand basis reviewing prohibited are not from
we remand, despite her conclusion
erroneous jurisdiction of the
that she was “without (a differently crite
original action” worded 1447(c)’s subject
ria than section “lacks opin in her jurisdiction”). matter Nowhere Flores, L. Asst. Federal Hector Public mention 28 ion did the district court even Defender, Miami, Fla., defendant-appel- 1447(c). U.S.C. § lant. Hertz, Burns, Ann
Linda Collins Alice Miami, Bowen, Attys., Asst. U.S. Dawn Fla., plaintiff-appellee. America,
UNITED STATES
Plaintiff-Appellee, RODRIGUEZ, Raul Defendant- TJOFLAT, Judge, Before Chief Appellant. EDMONDSON, MORGAN, Judge.
No. 91-5457. Appeals,
United States Court PER CURIAM:
Eleventh Circuit. Dec. Rodriguez, appellant, Raul was con- II controlled importing a Schedule
victed 952(a) in violation of U.S.C. substance challenges He