
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1728                           GLORIA GONZALEZ-GARCIA, ET AL.,                                Plaintiffs, Appellees,                                          v.                         WILLIAMSON DICKIE MANUFACTURING CO.,                                Defendant, Appellant.                                _____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Daniel R. Dominguez, U.S. District Judge]                                              ___________________                                 ____________________        No. 96-1737                 IN RE:  WILLIAMSON DICKIE MANUFACTURING CO., ET AL.,                                     Petitioner.                                _____________________                             PETITION FOR WRIT OF MANDAMUS                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Radames  A. Torruella,  Ariadna Alvarez  and McConnell  Valdes  on            _____________________   _______________      _________________        brief for appellant.            Luis Toro Goyco,  Nora S. Rivera  Carrasquillo and  Arturo Luciano            _______________   ____________________________      ______________        Delgado on brief for appellees.        _______            Rafael  J. Vazquez  Gonzalez and McConnell Valdes  on Petition for            ____________________________     ________________        Writ of Mandamus.                                 ____________________                                   November 8, 1996                                 ____________________                 Per  Curiam.     Williamson  Dickie  Manufacturing   Co.                 ___________            ("Williamson Dickie") has filed both a notice of appeal and a            petition for  writ of  mandamus from  a district  court order            remanding  a case to a Commonwealth of Puerto Rico court from            which it had been removed.  We conclude that this court lacks            jurisdiction  to review the order of remand, either by way of            appeal  or  mandamus,  and therefore  summarily  dismiss  the            appeal and deny the petition for mandamus.  Because the issue            is a recurring one, a brief opinion explaining our result may            be useful for guidance in the future.                                          I.                 In 1993, Williamson Dickie dismissed some employees when            it  decided to close its  plants in Puerto  Rico and transfer            its operations outside of Puerto Rico.  In November 1994, 117            dismissed  employees  filed  suit  in a  Commonwealth  Court,            claiming entitlement  to  severance pay  in  accordance  with            Puerto  Rico Severance Law Statute,  Law 80 of  May 30, 1976,            P.R. Laws Ann.  tit. 29,    185 et  seq. (1985)  (hereinafter            "Law 80").  They also claimed that, in retaining only younger            employees  until the  operations were  completely shut  down,            Williamson Dickie violated the Commonwealth's law against age            discrimination.                 Williamson  Dickie  removed  the  suit  to  the  federal            district  court  on the  ground that  it  was a  civil action            arising  under the laws of  the United States,  i.e., that it                                                            ____                                         -2-            presented  a  federal  question.    Specifically,  Williamson            Dickie  alleged that, although  the plaintiffs' complaint did            not mention  the Employee  Retirement Income Security  Act of            1974 ("ERISA"), the suit,  in fact, was a claim  for benefits            under an ERISA plan,  falling under ERISA's civil enforcement            provision, 29 U.S.C.    1132(a)(1)(B), and thus was removable            to federal court.                 Plaintiffs responded with a motion to remand back to the            Commonwealth Court, contending that their complaint was not a            claim  for benefits  under an  ERISA plan,  but rather  was a            claim for "indemnity for  wrongful discharge" pursuant to Law            80.  Williamson Dickie then  moved to dismiss the plaintiffs'            severance pay claim, arguing that this claim was preempted by            ERISA.   Plaintiffs  filed an  opposition to  this motion  to            dismiss, reiterating their  contention that  their claim  for            severance pay was not ERISA-based.                 In April 1996, the district court issued  an opinion, in            which  it concluded that Law  80 was not  an employee benefit                                                 ___            plan  under  ERISA.   It  opined  that  Law  80 more  closely            resembled  the "one-time,  lump-sum  payment  triggered by  a            single event requir[ing] no administrative scheme," found not            preempted  by ERISA in Fort Halifax Packing Co. v. Coyne, 482                                   ________________________    _____            U.S. 1, 12 (1987), rather than the more extensive and complex            administrative obligations imposed  by the Massachusetts "tin            parachute" statute  that this court found  preempted by ERISA                                         -3-            in Simas  v. Quaker Fabric  Corp. of Fall  River, 6  F.3d 849               _____     ___________________________________            (1st Cir.  1993).   The district court  concluded, therefore,            that the  cause of action under  Law 80 was not  preempted by            ERISA.   It  determined  that Williamson  Dickie's motion  to            dismiss the  plaintiff's Law 80  claim as preempted  by ERISA            was  moot.   And, it  remanded the  case to  the Commonwealth            Court.                                         II.                 Section  1447(d) of  Title  28 provides,  subject to  an            exception  for civil  rights  cases not  relevant here,  that            "[a]n order remanding a case to the State court from which it            was  removed  is  not  reviewable on  appeal  or  otherwise."            Section  1447(d) applies only if the case is remanded for the                                     ____            reasons stated in 28 U.S.C.   1447(c)--a timely raised defect            in removal procedure or  lack of subject matter jurisdiction.            Things  Remembered, Inc.  v. Petrarca,  116 S.  Ct.  494, 497            ________________________     ________            (1995).  But where  the district court order of  remand rests            on  lack of  subject matter  jurisdiction, that order  is not            reviewable  by  appeal  or   mandamus,  even  if   erroneous.                                    __              ____________________            Thermtron Products, Inc. v.  Hermansdorfer, 423 U.S. 336, 343            ________________________     _____________            (1976); Gravitt v.  Southwestern Bell Tel. Co.,  430 U.S. 723                    _______     __________________________            (1977) (per curiam).                 Contrary to Williamson Dickie's contention, we interpret            the district court's order of remand as a  determination that            it lacked  subject matter jurisdiction over  the removed case                                         -4-            because no federal  claim had  been presented  to invoke  the            court's   federal  question   jurisdiction.     Rejection  of            Williamson  Dickie's preemption  defense  was a  link in  the            chain of reasoning.  But the preemption ruling, "rather  than            being apart from the question of subject matter jurisdiction,            [is]  necessary   to  determine  whether   such  jurisdiction            existed."  Hansen v. Blue Cross of California, 891 F.2d 1384,                       ______    ________________________            1388 (9th Cir. 1989); Nutter v. Monongahela Power Co., 4 F.3d                                  ______    _____________________            319,  321  (4th Cir.  1993)  ("The  preemption findings  were            merely  'subsidiary   legal  step[s]   on  the  way   to  its            determination  that  the case  was  not properly  removed.'")            (citation omitted).                 After  remand,  the  district court's  ruling  that  the            plaintiff's claim is not  completely preempted by federal law            "has no preclusive effect  on the state court's consideration            of the  substantive preemption defense."   Whitman v. Raley's                                                       _______    _______            Inc.,  886  F.2d  1177,  1181  (9th  Cir.  1989);  Nutter  v.            ____                                               ______            Monongahela Power  Co., 4  F.3d at  321-22  (same); Soley  v.            ______________________                              _____            First Nat'l Bank  of Commerce,  923 F.2d 406,  409 (5th  Cir.            _____________________________            1991) (same); Glasser v.  Amalgamated Workers Union Local 88,                          _______     __________________________________            806 F.2d  1539, 1540  (11th Cir.  1987) (per  curiam) (same).            Because   the  district   court's   preemption   finding   is            unreviewable, principles  of  collateral estoppel  would  not            apply  to preclude relitigation of the  issue in state court.                                         -5-            Nutter v. Monongahela Power Co., 4 F.3d at 321-22; Whitman v.            ______    _____________________                    _______            Raley's Inc., 886 F.2d at 1181.            ____________                 The approach we  take in declining to  review the remand            order is supported  by at  least four circuits.   See,  e.g.,                                                              __________            Nutter v. Monongahela Power  Co., 4 F.3d at 320-23;  Soley v.            ______    ______________________                     _____            First Nat'l Bank of  Commerce, 923 F.2d at 407-10;  Hansen v.            _____________________________                       ______            Blue Cross  of California,  891 F.2d  at 1387-90; Glasser  v.            _________________________                         _______            Amalgamated Workers Union Local 88, 806 F.2d  1539 (11th Cir.            __________________________________            1987) (per curiam).  Section 1447(d) recites that "[a]n order            remanding a case to the State court from which it was removed            is not reviewable on appeal or otherwise."  Thus, a number of            circuits have considered mandamus as a vehicle for review and            rejected  it as well.  See, e.g., Nutter v. Monongahela Power                                   _________  ______    _________________            Co., 4 F.3d at 320-23; Soley v. First Nat'l Bank of Commerce,            ___                    _____    ____________________________            923 F.2d at  407-10; In  re Business Men's  Assurance Co.  of                                 ________________________________________            Am., 992 F.2d 181, 182-83 (8th Cir. 1993) (per curiam).            ___                 Two circuit court opinions point in the other direction.            In In  re Life Ins. Co.,  857 F.2d 1190 (8th  Cir. 1988), the               ____________________            Eighth  Circuit considered  mandamus appropriate  in somewhat            comparable circumstances and gave as its reason the otherwise            lack of  appellate review  and the  preclusive effect  of the            district court's  ruling on  the  state court.   Because  the            district   court's   preemption   finding  is   unreviewable,            principles of collateral estoppel would not apply to preclude            relitigation of the issue in state court.  As for the lack of                                         -6-            appellate  review, this  is  just what  Congress directed  in            section 1447(d).                 In Tingley v. Pixley-Richards  West, Inc., 953 F.2d 1124                    _______    ___________________________            (9th Cir. 1992), the  Ninth Circuit regarded appellate review            of a  remand order, substantially  identical to the  order at            issue in the  case before  us, as  not barred  by    1447(d).            This approach  taken by  the Tingley panel,  however, appears                                         _______            inconsistent with the Ninth Circuit's own case  law in Hansen                                                                   ______            v. Blue Cross of California, 891 F.2d at 1388-89, and Whitman               ________________________                           _______            v.  Raley's  Inc., 886  F.2d at  1178,  neither of  which was                _____________            cited,  nor appears to  have been considered,  by the Tingley                                                                  _______            panel.    We agree  with the  Fourth  Circuit, see  Nutter v.                                                           ___  ______            Monongahela  Power Co.,  4 F.3d at  322-23, that  the Tingley            ______________________                                _______            opinion therefore ought not be given weight.                   The appeal in No. 96-1728 is summarily dismissed.   Loc.                 ________________________________________________________            R. 27.1.  The petition for writ of mandamus in No. 96-1737 is            ________  ___________________________________________________            denied.            _______                                         -7-
