Norman Sykes v. Texas Air Corporation
834 F.2d 488
5th Cir.
1987
Check Treatment

*1 Fifth Circuit. Before CLARK, Chief Judge, GEE, RUBIN, Judges. Dec.

GEE, Circuit Judge: Texas Air Corporation removed this case from the state courts of Texas on the ground that it was related to a case in bankruptcy. The district court held that there was no bankruptcy remanded the case to the state courts. Texas Air asks us to review the district court’s decision. Because cannot, we dismiss A. Facts and Prior Proceedings plaintiffs pilots airline who were employed by Continental Airlines at the time that began it bankruptcy proceedings in 1983. rejected Continental its collective bargaining agreement with the Air Line Pilots Association (“ALPA”) (the plaintiffs’ union) during the course case. The pilots then Air, sued Texas Con- parent tinental’s corporation, in Texas state court as third-party beneficiaries of a “side agreement”1 letter between ALPA and Texas Air.

Texas Air pilots’ removed the suit to federal district court. Texas Air asserted that it was entitled to some sort of indemni- fication2 by Continental should pilots’ agreed with ALPAin the "side letter” claim for indemnification sounded more like employ not to pilots non-union claim in question tort. The airline might it acquire. create or diction in probably this case turns pre- on the "side letter" served to bolster the ALPA-Conti- cise nature of against Texas Air’s claim Conti- nental bargaining agreement collective and, particular, nental the defenses available Texas Air could not agreement undermine that to Continental if Texas Air loses this case and by shifting provided aircraft and services sues Continental for indemnification. Continental to a new subsidiary. non-union Wood, Cir.1987) ("related 2. At oral argument, to” counsel for Texas Air assert- "whether the outcome ed that Continental indemnify have could conceivably Texas Air "implied because of an effect on the being contract" be- estate administered in bank- parent tween subsidiary. ruptcy"; emphasis Members of our original). disposition Our panel, hand, on the other suggested that the of this case makes unnecessary,

489 un- ground. An order entered equitable successful, that there was prove suit remanding a claim or (and thus der this subsection jurisdiction federal original action, potential a decision to not re- this or cause of because jurisdiction) moval the by appeal estate made or mand, is not reviewable the Continental on effect the Conti- to” “related action otherwise. state-court within the bankruptcy proceeding nental already in have 1452. We 28 U.S.C. § 1334(b).3 The dis- meaning 28 U.S.C. of § appeal from is no there general terms that was ruling that there disagreed, court trict 1452(b) and its order under a remand § the jurisdiction predecessor statute. See same-language bank- the Continental to” not “related 501, 781 F.2d Enterprises, Rayburn In re court.4 remanding it to state ruptcy and 1452); Cir.1986) (§ Comp- In re (5th 502 Cir.1983) 626, (5th (pre- ton, 627 F.2d Problem The Jurisdiction: Appellate B. sec- bankruptcy removal 1984 Amendments to establish task is first Air’s Texas 1478). at 28 U.S.C. tion codified § district the to review jurisdiction have reading accept the urges us to Texas both governs Section order. court’s 1452(b),5 1478(b), found now of former § § bankruptcy courts to the federal removals (3d F.2d 984 Pacor, Higgins, 743 Inc. v. in of deci- scope of the Pacor, Cir.1984). the Third or not: sions court’s remand a district to review asked or any claim remove (a) may party A jurisdiction. of for want action[,] other in a civil action cause of order was the held that court first the United before a than order doc- under the “collateral appealable by a a civil action Tax Court or States Next, it considered 990. Id. at trine.” gov- such to enforce unit governmental in 28 U.S.C. general rule whether regulatory police or unit’s ernmental non-reviewability of 1447(c)-(d)6of the dis- § court for to the district power, jurisdiction remands for want trict court if pending, action is civil where such removed under bankruptcy cases applies has court such district at out that 1452(a). pointed The court under sec- of action § claim or cause such enacted, allowed 1452 was the time § this title. 1334 of tion (not just state any from removals or claim (b) to which such (not just 1441) party by any courts as § may remand action removed cause 1441) pre-Mara- as defendants any of action or cause such claim being in bank- administered the estate fect on exactly figure what indemnification out tous (or at least test from ruptcy." This tort or assert under Air could claims sentence) circuit. See law this is now the law, Conti- kinds defenses or what contract Cir.1987). Wood, response. raise in nental could 3. related to "[1] conflate gins, 743 tion case ing Section The district trict courts courts other ing confers sive cases under Notwithstanding any proceeding “could arising was "related within under actually jurisdiction of all following F.2d 1334(b) reads: cases under exclusive 1334(b)’s title shall have court’s order title 11. analyzed than the proper to cases title test three or title conceivably (3rd arising in or related to original category civil or under title Act distinct 11.” at times jurisdictional Cir.1984): [2] proceedings aris- arising courts, the dis- But on a court or Congress (whether categories Inc. v. the district 11”), appears to not exclu- in or whether utiliz- ques- Hig- [3] ef- 5. Our 6. Section language will sometimes Pacor) dently appears that 1452 as exception for removal based viewable court from § 1443 courts) our Rayburn (c) (d) court not that themselves discussion If at An order shall remand and without in former ]. 1447(c) and (equal protection having which refer appeal or surprisingly time before remanding F.2d of the older case was to former it was removed same 1478 and the case.... (d) jurisdiction, refer to at read: 503. otherwise, statutory treats violations removed former present section cases Therefore, we on 28 the identical judgment it the district is not meaning. [with (such as improvi- State an (and thon7 courts not the fed- ders. The congressional policy rests on the eral 1441). district courts as in § Because unique problems administrative inherent in of “needless conflict and inconsistencies” such appeals: Except in the highly unlikely contrary interpretation that a create, event that a district court is so unsure of 1447(c) court concluded that applies itself that it stays its decision remand, to 28 U.S.C. 1441 removals entry of a remand order pro- ends the *3 removals, to bankruptcy the latter being ceeding in the federal court and the state governed exclusively by Id. at (or other9) court proceeding gets under 991. Finally, the Third Circuit turned to way. If years months or later a federal 1452(b) applied analytical and its knife: of Appeals decides that the remand (b) Because subsection only mentions improper, matters are thrown into con- mands based on grounds, and fusion and the effort expended by par- the the because of denial reviewability applies ties on the state court proceeding (along to entered under this “order[s] subsec- good with a deal of judicial state resources) tion,” the court held that while remand is in jeopardy. And if the state case has orders based equitable grounds were proceeded to judgment, the subsequent re- unreviewable, remand orders based on oth- removal for naught the parties are grounds (such er as lack of jurisdiction) by judicata. bound res Parsons Steel fully were reviewable Cf. in the Court of Ap- v. First Bank, Alabama 518, U.S. peals. Id. at 993. 768, S.Ct. 88 L.Ed.2d (1986) (relitigation asks adopt us to Pacor’s rea- exception to Anti-Injunction the Act, 28 soning and to hear appeal. We are 2283, allowing injunctions of state also directed to a footnote in our Court’s court proceedings “to protect or effectu- decision in Browning Navarro, ate” federal judgments, does not alter obli- 1076-77 Cir.1984), n. ap- gation of federal courts give to “full faith pears approve to in dicta the distinction and credit” to prior judgments, state court between the reviewability equitable of 1738). U.S.C. § drawn in remands Pacor.8 sure, To be of sort interlocutory Appellate C. Jurisdiction: The Solution appeal can result in the nullification of We must dismiss the The rea- proceedings level; at the trial soning of Pacor does persuade us; usual case the reviewing court has direct even if it did way we see no Ray- around supervisory authority over the court, trial and Compton. bum and thus interlocutory appellate determina- The Pacor analysis tions advance, can either a sort simplify, or merci- semantic crack fully statute rather than end on-going a proceedings below. appreciation sound congres- fact, the strong the “collateral order doctrine” is policy against sional review of remand or- partly predicated on the assumption that Pipeline Northern Co. Pipe v. Marathon bankruptcy. contrast, Line the instant action Co., 458 U.S. 102 S.Ct. 73 L.Ed.2d 598 involves a Court, decision Bankruptcy (1982). having jurisdiction and in the exercise of its discretion, to remand the 1979 case. passage 8. The cited reads: Browning (citations 743 F.2d at 1076-77 n. 21 Nonreviewability extends discre- omitted; added). emphasis tionary decision to remand or not to remand action, properly a removed not to whether the 9.Unlike § § 1452allows removal from all originally had courts, state, otherwise, federal and except from over the matter. There is no dispute in the the Tax Court regulatory or from enforcement instant case that the Bankruptcy Court had proceedings. matter, practical As a jurisdiction to act and the manner in which it courts; bulk of subject removals acted is not are from our review. In that, possibility Third case the 1478(b) extraordinary notwith- standing, ruption it could review a discussed in the text remand exists order whenever the when the court lacked case has returned a court outside the direct 1471(b) under [now supervisory authority 1334] because the of the removed was not "related to" asked review the remand order. removals,13only discretionary re- ap- all other interlocutory allowing types certain jurisdictional mands and not ones more effi- cases help to resolve will peals imagine that Con- or- viewable. We cannot remand review ciently. Appellate perverse gress actually such necessarily inef- intended hand, is ders, on the other can we see how it furthers asymmetry, nor binary quali- peculiar its because ficient congressional goal. affirmed, any conceivable in which Either the ty: a waste itself appeal unaesthetic; anomaly merely is this Nor case; on-going state effect had possibility confusion it creates the real reversed, in which or the manipulation. Both proceed- state court made in progress every case literally apply to removed forced parties be nullified ings may of a by the defendant because state court recognize court.10 We in federal restart may term bankruptcy; what related man- has Supreme Court allowed jurisdiction exists under removal “direct” decisions of remand damus companion jurisdictional 1452 and its difficulties” 1447,11 “administrative so an *4 § 1334, and “indirect” bankruptcy statute § reading sustain our alone cannot rationale jurisdiction exists un- bankruptcy removal allows But Pacor 1452. of § full permits removal which der § mandamus) with- (not mere 1452 under § district which the federal action civil shows, or, opinion for all the discussing out in- original jurisdiction, courts would judicial considering problems seriously 1334. cluding bankruptcy actions under § administration. words, bankrupt- every is in there In other “direct” both potential for cy case creates a also holding in Pacor The “indirect” 1334 removal bankruptcy 1452/§ anomaly between strange inherent ov- removal. This rule general 1441/§ and the rule conclude in Pacor to erlap led the court construed Thermtron 1447 as under § apply 1452 should when 423 U.S. that Hermansdorfer, Products, Inc. v. solution 1334. That (1976). In founded diction 584, 46 L.Ed.2d 96 S.Ct. way to avoid inconsistencies plausible is a remand- Thermtron, district had from the simultaneous could result that was crowded its docket the case ed removal two statutes of the application result plaintiff would injustice to the cases, inadequate. it is trial—in long delay before was on words, the remand there bankruptcy cases where What of statute, speaks The grounds. bankruptcy re- “direct” both § 1452/§ mandatory remands when only of “federal and “direct” 1441/§ moval jurisdiction.12 is without removal; for exam- question” that Supreme mandamus law federal securities suit under ple, a order a remand to reverse available parent against the brought jurisdic- not “equitable” and based rule of Under the of a debtor? corporation 1447. by required as tion defendant Can what result?: route removal which “direct” then, of Pacor choose together the result Taken grounds controlling possible take, thus For is this: Thermtron appellate kind and the remand remands and for removals, only jurisdictional the dis- orders? Can reviewable; of the view discretionary ones the re- ing be carried back above, judgments could or must state court noted 10.As final court. proceeding in federal newed appeal of by a successful not be affected might be interme- order. There also Products, Inc. v. Hermansdor See Thermtron 11. prior to final rulings in the state diate L.Ed.2d fer, 96 S.Ct. 423 U.S. thus bind- in effect judgment that are below). (1976) (discussed of the ing judicata if the remainder even as res a successful court after case returns supra 6. note 12. points to a further appeal. this Pacor-style All 1443; supra see figur- Except under 28 rule in Pacor: with the set of difficulties proceed- note ing aspects of the state court what out trict court choose to characterize such a tion that turn solely on the district courts' removal “really” under one set of stat- recitations of formulae sense, make little other, utes or the controlling thus the na- and we would not add a new one even were ture of appellate jurisdiction over its order? we free to do so.15 And scope since of review under each is, As it our decisions in In re Compton removal other, statute cancels out can and In re Rayburn control the outcome of the district court remand under both re- In its discussion of former statutes, moval negating thus all review? 1478, Compton explicitly noted the dis- problem Part of posed by the first tinction between “equitable” jurisdic- question is, course, built to the remov- tional urged remands Air, holding al statutes: The may give statutes the de- neither kind reviewable: “Whether the re- legitimate fendant room for strategic use mand order be viewed as one of abstention discrepancies of their to limit the discretion or as one grounded perceived in a want of district court. But the rule of Pacor jurisdiction we are not empowered to re- creates overlay a new of incentives for view it.” 711 F.2d at 627 (emphasis add- strategic respect behavior with appellate ed).16 The fact that in Compton litigant no review; and these include for the first made and judge fancy considered the time, as questions the other imply, incen- argument advanced in this case does not tives for the district engage court to authorize us to disregard our Court’s strategic maneuvering. strong rule that we cannot overrule the court’s appear incentives or disappear with prior decision. Nor was panel presence or absence re- decided Browning v. Navarro free to do *5 view. so.17 Furthermore, Rayburn explicitly ap- Which leads us to the problem: plied Pa- the rule of Compton to the same enlarges upon cor a weakness built into the language in 1452. The district court had rule of As Thermtron. Justice Rehnquist remanded a against state-court suit suggested dissent,14 after sole Thermtron shareholder of a corporate debtor, reviewability of 1447 remands “stating turns on both lack of jurisdiction federal what the district court says it is doing. If and grounds abstention as its for action.” says it is remanding for lack F.2d at 502 (emphasis added). We held jurisdiction, the decision—even if flagrant- that Compton's reading of former ly wrong completely unreviewable. should If our reading control —is of the identical the court says else, something language post-1984 review in the is removal statute available. In words, other 1452: “We reviewability therefore reaffirm the Comp- incantation, and ruling ton follow it.” again We do so has absolute today. discretion to permit or to deny review of its order. imports D. Conclusion problem same into the bankruptcy arena: If the district says By the rule Compton re and In re grounds, review; no if the court is unwise Rayburn we jurisdiction lack to hear this enough say “no bankruptcy jurisdic- appeal. Those cases create an absolute bar tion,” (not just mandamus, as in against appeal full from decisions to remand or Thermtron). Rules of appellate jurisdie- not 1452(b). under § And we think those 14. Thermtron 423 U.S. at 16. When the district court decides to retain a at 596. S.Ct. arguments the face of that lacks 15. We do not suggest mean to that federal dis- diction, the decision technically itself unre- prone courts manipulate are legal doc- viewable; appellate course the trine; appellate we as judges know better than viewing any aspect must contrary .the question be true. The mand dismissal if the refusal to remand was analyzed we have whether rules of i.e., wrong, if there give manipu- incentives for over the case. wise, lation are particularly when there seems to be no corresponding benefit other than the fact of supra review itself. note 8 and accompanying text. despite the prudent decisions correct contrary to the opinion

carefully reasoned We therefore Higgins. v. Inc.

DISMISS RUBIN, Judge, B.

ALVIN

concurring: agree fully with the ratio I do

While my Gee in Part brother expressed

nale I remainder opinion, concur

C of that and in the conclusion opinion Cir. Compton, 711 F.2d Rayb Enterprises v. Rayburn

1983), (5th Cir.1986)

urn, (per

curiam) controlling. Deborah M. P. LYONS

Jerome Plaintiffs-Appellants,

Lyons,

v. SHEETZ, et D.

William

Defendants-Appellees. M. Deborah LYONS P.

Jerome Plaintiffs-Appellants, Lyons, *6 Judge,

RANDALL, Fifth Circuit Hill, Judge, Garwood, Fifth Circuit Judge, Defendants- et

Fifth

Appellees. 87-1102, 87-1425

Nos.

Summary Calendar. Appeals,

United States

Fifth Circuit. 16, 1987.

Dec.

Rehearing Denied in No. 87-1102 14, 1988.

Jan.

Rehearing No. 87-1425 Denied in 19, 1988.

Jan.