Thermtron Products, Inc., v. Hermansdorfer – Oral Argument – October 07, 1975

Media for Thermtron Products, Inc., v. Hermansdorfer

Audio Transcription for Opinion Announcement – January 20, 1976 in Thermtron Products, Inc., v. Hermansdorfer

del

Warren E. Burger:

We will hear arguments next in 74-206, Thermtron Products against Hermansdorfer.

Mr. Dickey, I think you may proceed whenever you are ready.

Frank G. Dickey, Jr.:

Mr. Chief Justice and may it please the Court.

I am Frank G. Dickey, Jr.

I am with the Law Firm of Landrum, Patterson & Dickey of Lexington, Kentucky.

We represent the petitioners, Thermtron Products and Larry Dean Newhard.

It is indeed remarkable that for more than 175 years, the District Courts, the Circuit Courts have substantially followed and complied with the statutory provisions, concerning removal and remand.

However, this matter is before the Court for review of an erroneous order of remand and is before the Court upon petition for writ of certiorari to the Circuit Court of Appeals for the Sixth Circuit.

And for determination of this Court to exercise its inherent authority to intercede and direct the Sixth Circuit to review this matter and for issuance of a writ to the respondent herein, to prohibit the respondent from divesting the United States District Court for the Eastern District of Kentucky, of jurisdiction of this case and to compel the respondent to retain jurisdiction over this matter.

William H. Rehnquist:

Where do we get any authority at all in view of 1447(d) that says an order of remanding a case to a State Court pursuant to that was removed pursuant to Section 1443 shall not be reviewable by appeal or otherwise?

Harry A. Blackmun:

And in connection with that I think it did not cite 1447(d) at all.

So —

Frank G. Dickey, Jr.:

If Your Honor please, 1447(d) says exactly that.

That an order of remand is not reviewable by appeal, mandamus, prohibition or any writ whatsoever.

What 1447 contemplates obviously is that there would not be any orders of remand where a case was removed properly, where the District Court had jurisdiction of the case, assumed jurisdiction of the case and then turn around and wrongfully remanded it upon some arbitrary and discretionary basis.

William H. Rehnquist:

Why is it not just as possible to say that what 1447(d) contemplates is that Congress rather deliberately chose to avoid the danger of delay that would come from appealing an order of remand, even though that order was erroneous rather than to make sure that an erroneous order of remand was straightened out by the Court of Appeals every time.

Frank G. Dickey, Jr.:

Mr. Justice Rehnquist, I would agree that Congress did intend not to burden the Circuit Courts of Appeals with review of every order of remand that came along.

1441 provides that any civil action brought in a state court of which the District Courts of the United States have original jurisdiction may be removed by that defendant from the State Court to Federal Court.

Section 1447(c) provides, if at anytime, before final judgment, it appears that the case was removed improvidently and without jurisdiction then it shall be remanded.

In any case that it is removed from the State Court to the United States District Court.

If it is removed and on the face of the petition for removal, it is apparent that there is no jurisdiction, then it is mandatory that that case shall be remanded and there is no review of that order because the petitioner has not complied with the statutory provisions.

However, if a case is removed properly or providently and if the District Court has jurisdiction then the District Court must assume jurisdiction and cannot remand that case.

Otherwise, if it were not so, the District Court could enter an order of remand in any case it saw fit and the petitioners, whether there was jurisdiction or not, would be sent back to State Court without any remedy, without any review of any discretionary or arbitrary decision and I submit that would constitute a denial of due process of law.

Harry A. Blackmun:

Would that not come up on the appeal from the final judgment?

Frank G. Dickey, Jr.:

Mr. Justice Blackmun, if my memory serves me correctly, there are cases which say that even if the order of remand in a case where there is no jurisdiction and the case goes back to State Court and is tried and comes, in this case, to the Court of Appeals for the Commonwealth of Kentucky, that this Court I believe would say and has stated or at least the Sixth Circuit has stated that that order of remand is not reviewable under Section 1447(d) for the simple reason that that order of remand in that particular case was made because the Court obviously did not have jurisdiction and to hold otherwise, would create a volume of appeals.

In every single case where a defendant thinks that he would be wrongfully denied access to the Federal Courts under his statutory rights which Congress has granted since 1797 — 89 that statutory right would be denied, that there would be a volume of appeals.

Harry A. Blackmun:

Well, Congress certainly choose that unfortunate language in 1447(d), did it not?

Frank G. Dickey, Jr.:

In this particular instance and under these facts, yes sir they did, because in this case, the facts in record herein are decisive.

In this case, the petitioners removed this action from the Pike Circuit Court in Pike, Kentucky.

That action was removed in strict compliance with the removal statutes.

Frank G. Dickey, Jr.:

It was properly removed and the respondent has conceded that it was properly removed.

In this case, the respondent assumed jurisdiction over this matter.

The respondent recognized that he had jurisdiction over it and the case stayed in United States District Court for some nine months, after which the respondent took it upon himself to remand the case to the Pike Circuit Court.

And in this situation where an order of remand was wrongfully entered, the petitioners must have some remedy in as much as the order of remand was based on purely discretionary considerations.

And based upon considerations that have no foundation whatsoever in the legal scheme or the statutory scheme as far as removal and remand are concerned that until this Court granted certiorari, the petitioners had been denied any remedy whatsoever from the order of remand.

Harry A. Blackmun:

Do you know — to the other, some 28 actions which this judge remanded similar to this diversity action or they are just sitting there in the State Court or what has happened to them?

Frank G. Dickey, Jr.:

Mr. Justice Blackmun, I believe that reference is made in the petitioner’s petition for writ of mandamus to the Sixth Circuit.

Harry A. Blackmun:

Page 26 of the appendix, I just want to –?

Frank G. Dickey, Jr.:

That reference was made upon information to counsel for the petitioners and even though it is not in the record, I would have to advise the Court that I have subsequently been advised that 14 cases, I believe is the correct number which consists of all of those cases which were removed during the year 1973 from the Pike Circuit Court to United States District Court.

In 14 cases, there were orders entered show cause why the cases should not be remanded.

In all but two of those cases, orders of remand were entered.

In the two cases which the District Court arbitrarily and discretionarily decided to retain jurisdiction.

Those two cases of course are still in the United States District Court.

However, the other 12, I cannot answer you definitely as to what action has been taken.

As far as this case is concerned, the Pike Circuit Court Judge, Judge Fenders, has held a pre-trial conference in the matter.

He has been advised and has considered the fact that this case was in the Sixth Circuit Court of Appeals and subsequent to that no action has been taken by the Pike Circuit Court.

If it pleases the Court, the constitution specifically provides for controversies being litigated in Federal Courts between citizens of different states.

That probation —

Potter Stewart:

It has long been recognized, has it not, that constitutional provision is subject to the terms and conditions for diversity jurisdiction that Congress might specify?

Frank G. Dickey, Jr.:

Yes, Your Honor it is, since 1789.

Potter Stewart:

Congress has specified, you say that a case such as yours, is clearly removable by your client to the District Court and Congress has further specified that an order of a District Judge remanding a case that has been sought to be removed is unreviewable by any Court.

Now, are those not the terms and conditions that Congress has specified, both of them?

Frank G. Dickey, Jr.:

Those are the terms and conditions to the extent that it contemplates that an order of remand will not be entered unless the case is removed improvidently and without jurisdiction.

Potter Stewart:

Well, the District Judge has told that, but assume you are quite right that the District Judge was acting quite erroneously when he remanded this, but Congress has simply said that one of the terms and conditions of diversity jurisdiction is that the action of the District Judge, however erroneous it may be, is unreviewable?

Frank G. Dickey, Jr.:

If Your Honor please, I think that is what the language of Section 1447(d) —

Potter Stewart:

It seems to say —

Frank G. Dickey, Jr.:

Exactly.

However, I would submit to the Court and this has been one of the arguments of the respondent that at page 8 of the respondent’s brief, this particular argument is even made that even if an erroneous order is entered, there is no remedy, there is no review of that order.

Potter Stewart:

That is what the — that what seems to be said?

Frank G. Dickey, Jr.:

And I would submit to the Congress —

Potter Stewart:

What Congress seems to have said, is it not?

Frank G. Dickey, Jr.:

And I would submit —

Potter Stewart:

And that is one of the limitations on diversity jurisdiction, is it not?

Frank G. Dickey, Jr.:

If that is what that says and if that is what Congress intended which I submit that is not, singularly any District Court Judge in this entire country could arbitrarily, discretionarily upon mere whim say to any removing defendant, I do not like your case, I am too busy, I do not like this party and even though that party has a statutory right of removal, granted by Congress, he would have no remedy whatsoever from action on behalf of a District Court Judge?

William H. Rehnquist:

Mr. Dickey —

Potter Stewart:

The statute does say, is it not?

William H. Rehnquist:

For the first hundred years in this country that there were trials in the Federal Courts for criminal offenses, there was no appeal whatever beyond the District Court until 1889.

If a District Judge or Circuit Judge sitting all by himself sentenced you to a hundred years in prison, there was simply no appeal from that and nobody ever suggested that even though it was very arbitrary, the particular action taken by the Court, that the Supreme Court had some inherent right of review over these sentences. Congress had not granted it and I would think that you would have something of an uphill argument on bringing your case the appealability of it under this 1447(d), conceded there was flagrant error in what Judge Hermansdorfer did, how do you get beyond his Court with it?

Frank G. Dickey, Jr.:

Mr. Justice Rehnquist, I would submit to this Court that this Court does have inherent authority over all Lower Federal Courts, over all District Court Judges in fact, where there is such a flagrant denial of a defendant’s right of removal and denial of a statutory right, that there must be some extraordinary remedy and this Court does have the inherent jurisdiction or the inherent authority to discipline Lower Court Judges —

Warren E. Burger:

Does that mean, it is not reviewable language right out of the statute?

Frank G. Dickey, Jr.:

As I pointed out before Mr. Chief Justice, it does read exactly that way, but obviously it was not contemplated by Congress to mean that.

Although this Court is not bound by the Circuit Court decisions, the decision of the Fourth Circuit in 1934 in Traveler’s Protective Association against Smith clearly states, “We do not think it was the intention of Congress that a party entitled to invoke the Federal Jurisdiction should be without remedy if the Court without a finding expressed or implied of improper removal should remand the case to the State Court on a ground arising after removal and not affecting jurisdiction.”

Certainly, we do not find in the statutes any evidence of such intention and the petitioner’s likewise do not find any evidence.

William H. Rehnquist:

Did the statute not read differently then than it does now?

Frank G. Dickey, Jr.:

If Your Honor please, that was under Section 28 of the Judicial Code and at that particular time, there was also the same language as in Section 1447(d) forbidding review of an order of remand in a case such as the one that was taken to the Fourth Circuit and in that case the Fourth Circuit stated that leave would be granted to the defendant in that case to file a petition for writ of mandamus, requiring the Court below to hear and determine the case and the Court further stated that it will probably not be necessary for the defendant to file such petition as the learned judge may of his own motion vacate the order, remanding the case and proceed to hear and decide it.

I would submit that this is exactly the same situation as in that case to the extent that Judge Hermansdorfer never made any finding whatsoever that this case was removed improvidently and without jurisdiction.

To the contrary Judge Hermansdorfer admitted that the case was properly removed.

He has conceded that the District Court had jurisdiction and in that case I think that the language in the Fourth Circuit’s opinion is applicable to this case that the petitioners in this case are entitled to some remedy, some review of judicial discretion.

Otherwise I think every —

Warren E. Burger:

As has been suggested to you, every element of reviewability is a creature of Congress, it is a result of Congress defining it, so you have to point to specific statute, do you not, to use jurisdiction to review?

You claim inherent power that — is that not contrary to all the law we have had for a 180 years?

Frank G. Dickey, Jr.:

If Your Honor please, I think that to deny a review of a decision such as this would squarely fall within in the concept of the constitution and deny the petitioner’s due process law.

As far as the statute is concerned, there are no cases which specifically interpret Section 1447(d) because there has been with the exception of two or three cases, no decision or no case where a District Judge has flagrantly disregarded the clear and precise and language of the statute.

Only in cases where a matter is removed improvidently and without jurisdiction shall a case be remanded.

Harry A. Blackmun:

I suppose what you are saying is that this decision below opens a way for the Federal Judiciary country-wide to do away independently with diversity jurisdiction?

Frank G. Dickey, Jr.:

Mr. Justice Blackmun, if I had to look into the mind of Judge Hermansdorfer, which I obviously cannot do, I would say that this was the intent of his order of remand.

Harry A. Blackmun:

This is the responsibility, is it not, for every Federal Judge to follow his example and just clear their calendars of diversity cases?

Frank G. Dickey, Jr.:

It would certainly be unless this Court —

Harry A. Blackmun:

And only remove — of diversity cases –-

Frank G. Dickey, Jr.:

If Your Honor please, I think if the order of remand in this particular case is permitted to stand, this Court is going to have to legislate judicially which is an area which is completely within the realm of Congress and this Court would also have to eliminate original diversity jurisdiction as well as removal.

Frank G. Dickey, Jr.:

I think that not only would the order of remand in this particular case apply to removal of diversity jurisdiction, but it would as far original jurisdiction goes because this was a case which could have brought them in the District Court under the provisions of original diversity jurisdiction.

Thurgood Marshall:

Mr. Dickey, Congress could remedy and stop this with just one stroke of (Inaudible) —

Frank G. Dickey, Jr.:

If Your Honor please —

Thurgood Marshall:

Just take the word “mandate” out of their provision?

Frank G. Dickey, Jr.:

Well, I think that what Congress —

Thurgood Marshall:

Right?

Congress —

Frank G. Dickey, Jr.:

Yes sir.

Yes sir, Congress could do that.

I think also that Congress intended that this matter should never arise by reason of the language in 1447(c).

William J. Brennan, Jr.:

Is not the substance of your argument that we ought not comes to 1447(d) as literally written, but as limited in application to cases you regularly sent back under the 1447(c) on some reason that might be error?

Is that not as you say happened here, the Court because it had a crowded calendar, sending it back and say go try at the state court, do not bother me with it?

Frank G. Dickey, Jr.:

That is entirely correct Your Honor.

Potter Stewart:

It is kind of odd to say that it is not reviewable with even though erroneous, unless the error is serious, what sort of a doctrine is that?

Frank G. Dickey, Jr.:

Well, if Your Honor please, the 1447(d) says that an order remanding a case is not reviewable on appeal or otherwise.

Potter Stewart:

Yes.

Frank G. Dickey, Jr.:

Otherwise, under the cases which have been interpreted before means by any remedy or by any means?

However, when Section 1447(d) is read with 1447(c), unless a case was removed improvidently and without jurisdiction, then the order of remand is not even a proper order of remand.

The refore, what I am saying is that the order of Judge Hermansdorfer in this case was a void order to begin with.

Potter Stewart:

Well, that is what you always say on appeal or on mandamus.

That is your substance of your case, but we are dealing with a procedural statute that Congress enacted saying that it is not reviewable, no matter how erroneous by appeal or otherwise and it is no answer to say to that statute to say yes, but this was erroneous?

Frank G. Dickey, Jr.:

What I am saying is Mr. Justice Stewart that this Court has the inherent authority to discipline District Court Judges as far as administrative matters are concerned and this is an administrative matter.

Potter Stewart:

Where do we get that?

This Court has the jurisdiction that was conferred upon it by the United States Constitution plus the additional jurisdiction has been conferred upon it by the Congress under the authorizing provisions of the United States Constitution.

And that is it.

Frank G. Dickey, Jr.:

This Court has the authority to control the dockets and where an attempt is made to deny the petitioner’s statutory right of removal —

Warren E. Burger:

You might be on solid ground if you argued that Section 332 Title XVIII gives Council of the Circuit that kind of authority, but where do you find the counterpart statute to Section 332 vesting this Court with such authority?

Frank G. Dickey, Jr.:

I feel that this Court could probably order under that particular statute the implementation of the relief sought by the petitioners in this case.

William H. Rehnquist:

But we are not the Judicial Council.

The judicial Council consists of the judges of the Sixth Circuit?

Frank G. Dickey, Jr.:

Well, that particular Judicial Council has been notified as indicated in the memorandum opinion of the —

William H. Rehnquist:

I gather that the Sixth Circuit was concerned about what the judge had done and was going to try that perhaps set them straight informally, that does not help you either?

Frank G. Dickey, Jr.:

That does not help me a bit.

I would assume that is correct.

Apparently Judge Hermansdorfer is the First District Court Judge to infer discretionary powers in remanding this particular case and I would submit that the discretion that was exercised by Judge Hermansdorfer is in direct contravention of the statutes provided by Congress.

His decision is certainly not founded upon any legal or jurisdictional basis, particularly where he has admitted that he should actually have the case and I am as concerned as well as the judiciary with the problems which confront our Lower Courts today.

However, I am reminded of the situation that existed in the 1880s when we had the same crowded docket that we have today.

A lawyer by the name of William Megs (ph) from Philadelphia submitted an article to the American Law Recorder and in an effort to determine whether more Federal Judges should be appointed or whether the Federal Court should restrain themselves from participating in diversity matters, Megs suggested that the Federal Courts eliminate or Diversity Jurisdiction be eliminated from the Federal Courts.

And the reply that he got to that suggestion in the Washington Law Reporter was, the fault of this proposal is the same which has marked many other suggestions. It is a proposal how not to do professional business, not how to do it and I would submit to you that Judge Hermansdorfer’s order is an example likewise of how not to rather than how to.

William H. Rehnquist:

Mr. Dickey, looking through this Fourth Circuit Case that you cited a moment ago, the Traveler’s Protective Association case in 1934, the statute then apparently read that an order of remand shall be carried into exertion and no appeal or writ of error from the decision of the District Court, so remanding the cause shall be allowed.

And in that case, the Fourth Circuit held yes, although you cannot have an appeal, you can have mandamus, but now your 1447(d) reads differently.

It says by appeal or otherwise.

Now, I am surprised frankly that you answered question that the statute was the same because it seems to me that is quite an important difference?

Frank G. Dickey, Jr.:

Well, the way I had read that Mr. Justice Rehnquist was that it read the same.

It does not read exactly the same.

My interpretation of that is where it said writ of error that that included all other writs such as mandamus, prohibition, all writ statute.

William H. Rehnquist:

But the Fourth Circuit said differently certainly.

I would think that the present proscription is broader than the one that was obtained in the 34 case?

Frank G. Dickey, Jr.:

But without being fictitious may be otherwise does not include mandamus.

I do not know.

Warren E. Burger:

Mr. Combs?

C. Kilmer Combs:

Mr. Chief Justice and may it please the Court.

I represent as the respondent real parties and interest and there would be a couple who was injured on a mountain road in Pike County, Kentucky.

But I do not hesitate one moment to support Judge Hermansdorfer in what he did in this case.

At the outset, I want to disabuse this Court’s mind of any notion that Judge Hermansdorfer through pressure of case load or whatever, rationally or otherwise dismissed rather or remanded these cases that are referred to in the record.

To the contrary, his response in the Sixth Circuit points out that when he realized that there had been very few, practically none, of the several cases in the Eastern District of Kentucky tried since 1968, when he realized that there could be no trial dates in the foreseeable future, he realized that something had to be done.

So, he went through his entire docket and he concentrated on the diversity removal cases and he looked at those cases with the idea of determining whether in his discretion he might some way remand those cases to the state courts or there was an impartial tribunal —

Harry A. Blackmun:

May I ask Mr. Combs?

C. Kilmer Combs:

Yes sir.

Harry A. Blackmun:

Whether then on his docket any Federal Employer’s Liability Act cases or Jones Act Cases that had been brought into Kentucky Courts?

C. Kilmer Combs:

That is brought to this Court?

Harry A. Blackmun:

Yes or removed to this Court?

C. Kilmer Combs:

I cannot answer that question Your Honor.

Harry A. Blackmun:

Because I gather the Federal question cases such as those pending on the State Courts which were also removable might have been included in the remand, might they not?

C. Kilmer Combs:

They could have Your Honor, I am not aware.

Harry A. Blackmun:

Even though they are Federal question cases?

C. Kilmer Combs:

Yes.

Now, as I —

Harry A. Blackmun:

There are other types of Federal question cases besides Federal Employer’s Liability and Jones Act cases, are there not, that might also be removed?

C. Kilmer Combs:

I would think there are.

I do not know of any on his docket.

Harry A. Blackmun:

Yes.

C. Kilmer Combs:

But in any event —

Harry A. Blackmun:

Will you not have in the Sixth Circuit pressures as other Circuits have to get all cases tried and off the docket and given priority to bring in visiting judges from other places to help clear up these old cases?

C. Kilmer Combs:

We have those pressures Your Honor.

We have those pressures particularly in the criminal field.

We have those pressures particularly in the Social Security field.

I believe Judge Hermansdorfer mentioned that in his response in the Sixth Circuit.

We have that in the Federal black long field which is again the Social Security which the Sixth Circuit has given priority to, leaving cases such as this dormant on the docket.T

hose are the pressures we have and as a matter of fact, other judges have been sent in.

I have tried cases before other judges.

Harry A. Blackmun:

I am just suggesting that there are other ways to clear a calendar than to (Voice Overlap)?

C. Kilmer Combs:

There are.

This is simply one thing that Judge Hermansdorfer looked at and what he did, he looked at this cases and he realized that these were state cases, state issues.

In this particular case, an automobile accident, the kind that we try in the Pike Circuit Court everyday.

Harry A. Blackmun:

By state issues, you mean issues of state law?

C. Kilmer Combs:

Issues of State Law involving state occurrences, Your Honor.

Thurgood Marshall:

Did you not say that he exercised his discretion?

C. Kilmer Combs:

Yes, I did.

Thurgood Marshall:

Where did he get the discretion?

C. Kilmer Combs:

He gets that –-

Thurgood Marshall:

Is that not really the point is whether he did have any discretion?

C. Kilmer Combs:

This –-

Thurgood Marshall:

Does that not support?

C. Kilmer Combs:

This is the real issue.

Thurgood Marshall:

You assume he had it.

C. Kilmer Combs:

Well, I hope I can demonstrate it Your Honor and if I may I will try to do it right now.

Now, it has been suggested here that once a case is removed, that then it cannot be remanded other then for want of jurisdiction.

I think all of us would concede that if it is removed on a diversity basis and it later develops there is no diversity, then most certainly under those circumstances it would be remanded automatically.

Now, Section 1447(c) provides for remand if the case is removed improvidently and without jurisdiction.

Now, the question which entered Judge Hermansdorfer’s mind and I think really is the basic question here, is whether removed improvidently and without jurisdiction should be used, should be construed in the conjunctive sense or in the disjunctive sense.

Now, Judge Hermansdorfer improvidently removed —

Thurgood Marshall:

Why that should be improvident?

C. Kilmer Combs:

Improvident as I understand the word —

Thurgood Marshall:

As I understand in this case if he had less cases on his docket, it would have not been remanded, am I right?

C. Kilmer Combs:

No, Your Honor.

Thurgood Marshall:

Well, what is the reason because he had too many cases?

C. Kilmer Combs:

Well, that has nothing to do with the improvident removal as I understand it and as I concede.

But I concede improvident removal, a removal which was not providently made in order to secure a more impartial tribunal which is the sole purpose really of the diversity removal statute as I understand it.

Thurgood Marshall:

(Inaudible)

Warren E. Burger:

But the right to remove, is that qualified in some way or is it an absolute right on the part of the litigants, the litigant claiming diversity?

C. Kilmer Combs:

In my view and as I hopefully, correctly understand the intent of the Congress, it is a qualified right.

You have the right to remove, but the Congress provided expressly that if the District Court finds that the removal was improvident, that is it was improvident in the sense that it was not necessary in order to secure a more impartial tribunal, then the District Court can remand.

Warren E. Burger:

I could understand that better if the statute said improvidently or without jurisdiction?

C. Kilmer Combs:

I had the same problem Your Honor, but then —

Thurgood Marshall:

It is about all diversity cases in the country?

C. Kilmer Combs:

All removal diversity, of course there is no remand to —

Thurgood Marshall:

That would interfere with quite a few motions?

C. Kilmer Combs:

Well –-

Thurgood Marshall:

Just to accommodate one court they —

C. Kilmer Combs:

Be it as it may.

Thurgood Marshall:

I know you get some judges to agree with you, but it would though?

C. Kilmer Combs:

Well —

Thurgood Marshall:

I understand that once the case is remanded, that is it and the only way you can do it is on jurisdiction.

I understand that the rule, at least every case I read that is what it said?

C. Kilmer Combs:

Now, getting back to —

Harry A. Blackmun:

Just to maintain the interruption here, had you — then your — this case originally in the Federal Court it could not be remanded?

C. Kilmer Combs:

No, Your Honor it could not be dismissed.

Harry A. Blackmun:

Even though the same considerations might under into Judge Hermansdorfer’s mind?

C. Kilmer Combs:

Yes, Your Honor.

Getting back hopefully to answering both questions at once the and or, now this Court pointed out in De’Silva against Valentine, 351 U.S. 575 (73) that and or are often used interchangeably and when in the context of the intent of the statute, the intent of the Congress is necessary to construe one as the other, this Court would do so.

Conceivably, Mr. Chief Justice, it says and and it ought to be first tested that way.

But when we test it, we find that as Judge Hermansdorfer calls it a logical nonsecretory.

In other words, what he is saying is that it is just that it is construed that way it does not make sense.

It does not logically follow because if you use and in the conjunctive sense then in order to remand the case, you could not remand it for lack of jurisdiction alone.

Thurgood Marshall:

Why do we say “and,” I could take or and come out the same way.

What case do you have on improvidently?

What removal case do you have that took at improvidently?

C. Kilmer Combs:

I have no case Your Honor.

Thurgood Marshall:

I did not think you did.

C. Kilmer Combs:

But in all –-

Thurgood Marshall:

This is brand new?

C. Kilmer Combs:

To my knowledge, it is, but I will say that it sounds at least in my mind that this hearing — now in one case where I believe it was a jurisdictional question in this Court.

This Court construed or the main land to give a Circuit Court jurisdiction and that is the case of Union Insurance Company against the United States, 6 Wallace 879 881.

So when we look at it in that sense the word improvident that has a different and distinct meaning than improper.

Now, improper removal to note some error in removing.

Improvidence has a deeper meaning, a meaning where the parties intend to provide for the future, that is to provide a more impartial tribunal and bear in mind I say a more impartial tribunal.

So in my view, what the Congress was saying, using the disjunctive or is that whenever the District Court finds that the removal was improvident and that it was not done for the purpose of securing a more impartial tribunal then and under those circumstances, the Court could remand because after all, that was the intent and the purpose of the removal statute in the first instance.

Harry A. Blackmun:

Of course, there were no hearing on that to hear, was there?

C. Kilmer Combs:

Yes, it was Your Honor and I want to defend Judge Hermansdorfer on that.

C. Kilmer Combs:

He entered a show cause order.

In all of those some 28 cases or whatever and in each case, the parties were given ten days to respond and show why they would be prejudiced, why the cause should not be remanded.

Now, I do not know that Judge Hermansdorfer gave too much or too little time.

I do not know that he could have suggested whether he should or should not have suggested a hearing, but in any event the parties were given an opportunity to respond, to request a hearing, to request an evidentiary hearing if they desired which they did not.

Harry A. Blackmun:

But supposing in Kentucky, your Federal Jury is chosen from a larger geographical area than the State Court Jury, is it not?

C. Kilmer Combs:

Yes, Your Honor and that the Eastern District is divided up into divisions and not statutory, but divisions nevertheless and they do come from all let us say, five or six or seven counties instead of just a one.

Thurgood Marshall:

You said seven different places –?

C. Kilmer Combs:

Yes, Your Honor.

There are some and each of those divisions of course the jury is ordinarily selected from within the division.

Other than that, the jury selection is substantially the same.

Now, Judge Hermansdorfer commented and I think maybe mistaken way that in the Pike Circuit Court and especially the Judge to whom this case was assigned, there is no problem about prejudice.

There is no serious objection on the ground of prejudice in this case.

Judge Fenders —

Warren E. Burger:

That is not really an issuer here.

How could we evaluate an issue like that on this record?

C. Kilmer Combs:

I would say you could not Your Honor.

I would say you could not, but certainly there was no sufficient suggestion of prejudice in order for Judge — to deter Judge Hermansdorfer from remanding and he indicated in his response to the Sixth Circuit that had there been such a suggestion, seriously he would not have remanded.

So that we say is important from the standpoint that there was no local prejudice at least as disclosed by the record.

William H. Rehnquist:

Of course, the defendant’s right to remove is not conditioned on a showing of prejudice in an individual case, is it not?

C. Kilmer Combs:

No, it is not, but I suggest that it arises Your Honor on remand or improvident removal.

My construction is correct, if the Congress intended for the District Court to have a discretion in remanding removal cases, where removal is improvident, then it does have a play because after all the whole purpose of removal is in order to provide a more impartial tribunal.

If there is just an impartial, a tribunal in the state court, then certainly the same provident and there it becomes important.

Thurgood Marshall:

The statute does not say impartial tribunal, does it?

C. Kilmer Combs:

No sir, it is improvidence.

That is —

Thurgood Marshall:

The statute does not say that you have to give an impartial tribunal that is why you remove and do not say a word about that because it just says removal?

C. Kilmer Combs:

But if I recall correctly, Your Honor, this Court has construed that as being the purpose of the removal statute.

Thurgood Marshall:

What is the purpose, when it was passed it did not have a little while?

You talked about thousands of cases in the Second Circuit.

You are going through a lot, I do not know, I do not even know how many there are, that is why you want throw him out?

C. Kilmer Combs:

I do not want to throw him out.

Thurgood Marshall:

But you do, unless you want to exception for your district?

C. Kilmer Combs:

I want to give —

Thurgood Marshall:

And we cannot do that.

C. Kilmer Combs:

I want to give the District Judge in every District the discretion and I would agree that it must be carefully, wisely and soundly exercised to remand whether it is a improvident removal —

Thurgood Marshall:

In each case?

C. Kilmer Combs:

In each case upon his suggestion or upon the suggestion of the parties.

Thurgood Marshall:

(Inaudible) the amount of judicial time spent if you had a hearing on each case that would cut down judicial time, is that what you are saying?

C. Kilmer Combs:

No, I am not suggesting it as an administrative matter at all, Your Honor.

Thurgood Marshall:

His basis it is that this judge is overloaded?

C. Kilmer Combs:

His response in the Sixth Circuit indicates that it is on the same basis that I am arguing now.

That is the District Judge has a discretion where there is a improvident removal.

Potter Stewart:

Mr. Combs, this is not the issue that is before us at all, is it?

The issue before us is whether or not the judge’s order of remand was reviewable at all by mandamus in the Court of Appeals, that is the only issue, was it not, not whether or not it was correct or incorrect?

C. Kilmer Combs:

Well, certainly as I see it, that is an issue just as well as the reviewability.

Certainly if it is appropriate then that is a major factor in the decision in this case.

Potter Stewart:

That was not at all the basis of the Court of Appeals decision, was it?

C. Kilmer Combs:

No, it was not, Your Honor, but as noted by counsel they handled the thing as administrative matter.

Of course I have argued in the brief and I maintain of course that this Court has no jurisdiction.

I am agreeing with Sixth Circuit, but I still nevertheless maintain that the District Court has discretion.

Potter Stewart:

You have not a single, that is not what the statute says and that is not what any other case has ever held, is it?

C. Kilmer Combs:

No, it is not.

Potter Stewart:

That is not issue before this Court.

The issue is whether or not, even assuming it was a grossly erroneous remand order, whether or not it was reviewable?

C. Kilmer Combs:

Well, by the same token, I have no authority that says it is reviewable.

I have cited the authority.

Potter Stewart:

Yes, a very strong authority, that says it is not, and that is an act of Congress.

C. Kilmer Combs:

Yes, I do Your Honor.

Potter Stewart:

That is what is before us whether or not that act of Congress means what it seems to say?

Warren E. Burger:

You could concede that Judge Hermansdorfer’s action was in itself improvident, imprudent and unauthorized and yet stand on the statute that Justice Stewart has just referred to which says that even if that is true, no Court can reveal it.

Warren E. Burger:

Is that not the heart of this case that has been suggested to you several times?

C. Kilmer Combs:

Well, certainly that is the heart of it because if that be true, then that is the end of the case.

William H. Rehnquist:

Maybe you feel like we are more likely to decide that it is reviewable, if we feel that is grossly wrong and if we feel less that is grossly wrong, we are less likely to find it reviewable?

Or you just do not want to close that your client committed lawless act and there is no remedy against it?[Laughter]

Warren E. Burger:

In which the affirmative, the Congress has permitted a District Judge to engage in such an act without trying to characterize, same is true to some of us?

C. Kilmer Combs:

Well, the statute seems to say that he can remand for any reason.

I could argue that.

I will not suggest very strongly that that is not this case because I think it was carefully done.

I think Judge Hermansdorfer construed this Section 1447(c) in the disjunctive.

He felt that something improvidently done is a word that this Court uses all the time and that if it was removed improvidently, it was his duty to remand, but even so I will agree that this Court has no jurisdiction.

I will agree that the Sixth Circuit has no jurisdiction under all of the authorities and under the history of the statute as I understand it from the cases.

I think this case and the reason that I have perhaps belabored 1447(c) is important from an administrative standpoint, if that is what the Congress intended.

If the Congress intended the District Judge to have a discretion to remand where a case was improvidently removed to secure a more impartial tribunal when it was not necessary to do so then I think it should be said.

I do not think I would not suggest to this Court for a moment that that should be the basis for a wholesale remand throughout the United States.

I would not suggest that this Court for a moment that it be done other than on a forward looking clear and impartial basis with a view of limiting and restricting diversity, removal, jurisdiction, so that cases such as this where you have state issues, state occurrences, state law can be tried in the state courts where I think they belong.

Warren E. Burger:

Well, it does not say the same thing of your case, had it been venued in the Federal Court the first place?

C. Kilmer Combs:

Yes, I could Your Honor.

Unfortunately, I represent an elderly couple who would like to see this rule applied not only because I think it is a sound rule, but because they need to get their case tried in some court some day.

William H. Rehnquist:

I suppose as the plaintiff in the case like yours has a good deal more incentive that get into an uncrowded court and get to a trial than a defendant does?

C. Kilmer Combs:

Certainly, Your Honor, in this case, Judge Fenders has assigned it, we had a free trial, we have assigned it for trial one time and finally it came here.

I report to him periodically.

In the other 14 cases incidentally, the counsel involved told me that most of them, virtually all of them have been disposed of, the ones that have been remanded.

So this is important to me and to these two people.

Warren E. Burger:

Mr.(Inaudible), you have about three minutes left, do you have anything further?

Frank G. Dickey, Jr.:

Mr. Chief Justice and may it please the Court.

The petitioners in this case do have an absolute statutory right of removal.

What happens if this Court permits this case to stand as it is now and what happens if all District Court Judges are granted unbridled discretion to remand any case involving diversity jurisdiction that they see fit because those would be the only cases which would appear in the United States Court District Court as a result of diverse citizenship.

(Inaudible) It might as well apply to any removable case, including Federal question?

C. Kilmer Combs:

Oh! I agree wholeheartedly Your Honor.

Frank G. Dickey, Jr.:

That does not have to be diversity?

C. Kilmer Combs:

That is true.

If this Court sees fit to grant the relief sought by the petitioners, I would submit that we would still have orderly process in the District Courts until Congress sees fit to act which I realize that Congress has not been totally responsive to the needs of this Court and other Federal Courts, but until such time as Congress acts, there would be orderly process.

And without sounding pride, I would submit to this Court that for every wrong there must be a remedy and I would certainly hope that this Court granted certiorari to review this case and to grant the relief sought by the petitioners.

Thank you.

Warren E. Burger:

Thank you gentlemen.

This case is submitted.