noted that the Department of Veterans Affairs and Congress have taken significant steps to alleviate the special problems of veterans as contrasted with those of civilians who worked alongside members of the armed forces. See Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11 (1991); 38 C.F.R. § 3.311a (1990) (Department of Veterans Affairs regulations establishing official "presumption" of connection between certain illnesses and military service in Vietnam); In re "Agent Orange" Prod. Liab. Litig., F. Supp. , MDL 381, (E.D.N.Y. Nov. 15 1991) (describing recent statutory and administrative developments). In any event, the possibility of a result more favorable to the civilian plaintiffs is present regardless whether their action is heard in state or federal court. Equitable considerations, therefore, do not counsel against remand.
III. APPEAL OF REMAND
28 U.S.C. § 1447(d) was added in 1949 to the Judicial Code of 1948. As first enacted, it read: "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." In 1964, the provision was amended so as not to apply to civil rights suits. The statute now reads:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.
Section 1447(d)'s prohibition applies whenever the district court remands for lack of subject matter jurisdiction under 28 U.S.C. § 1447(c). See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976); In re Pan American Corp., No. 91-5037, 950 F.2d 839 (1991). If the district court remands for reasons not specified in section 1447(c), mandamus or other forms of appellate review may be appropriate. Thermtron, 423 U.S. at 351-53 (mandamus proper where district court ordered remand to ease crowded docket); Karl Koch Erecting Co. v. New York Convention Cent. Dev. Corp., 838 F.2d 656, 658 (2d Cir. 1988) (remand order based on forum selection clause reviewable because clause does not oust court of subject matter jurisdiction).
Since this case is to be remanded for lack of subject matter jurisdiction, review appears to be barred by a literal reading of 28 U.S.C. § 1447(d). This is an unfortunate result given the closeness of the case and the particular provision under which removal is sought. 28 U.S.C. § 1442, after all, is premised on the need for the federal courts to protect federal interests from possible state interference. In light of this concern, it would be useful for the parties and the district courts in this Circuit to have an authoritative pronouncement from the Court of Appeals, which has not yet had occasion to consider the "person acting under" provisions of section 1442(a)(1).
Recent case law from other circuits suggests that a path out of this quandary lies in 28 U.S.C. § 1292(b). In relevant part, that section provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action, may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . . .
An early Tenth Circuit case held that section 1292, although passed subsequently to section 1447(d), was not intended to modify or supersede the latter. See In re Bear River Drainage Dist. 267 F.2d 849 (10th Cir. 1959); accord Dawson v. Orkin Exterminating Co., 736 F. Supp. 1049 (D. Colo. 1990); J. Moore & B. [ILLEGIBLE WORD] 1A Moore's Federal Practice para. 0.169[2.-1], at 688-90 (2d ed. 1991). More recent authority from the Third and Ninth Circuits maintains a contrary view, allowing review of orders of remand when the grounds for remand are certified for immediate appeal. See In re TMI Litigation Cases Consolidated II, 940 F.2d 832, 838-48 (3d Cir. 1991) (review of remand for lack of subject matter jurisdiction appropriate where issue controlling remand is certified for appeal and order of remand is stayed pending outcome of appeal), petition for cert. filed, 117 L. Ed. 2d 491, 112 S. Ct. 1262, 60 U.S.L.W. 3598 (Oct. 23, 1991) (No. 91-676); National Audubon Soc'y v. Department of Water, 869 F.2d 1196, 1205 (9th Cir. 1988) (same). The district and appellate court opinions in the TMI case are particularly useful for their detailed analysis of the interrelation of sections 1292 and 1447(d). See In re TMI Litigation, 940 F.2d at 838-48; In re TMI Coordinated Proceedings, 735 F. Supp. 640, 646-48 (M.D. Pa. 1990), vacated on other grounds, 940 F.2d 832 (3d Cir. 1991).
In the present case, there is a controlling question of law and a substantial ground for difference of opinion as to the appropriateness of defendants' attempt to remove under section 1442(a)(1). This question controls the extent of federal subject matter jurisdiction in this and like cases where important federal interests may be at stake. An immediate appeal might materially advance termination of the litigation by preventing remand and leaving the case in the present forum, where considerable materials are already in the record available for judicial notice. The court therefore certifies for immediate appeal the issue of section 1442(a)(1)'s availability for natural or legal persons providing goods and services to the government under conditions of the sort described in this case. "Certification is made recognizing that the first question for appellate resolution will be whether § 1292(b) review is available under these circumstances." In re TMI Coordinated Proceedings, 735 F. Supp. at 648.
The defendants have not met their burden of establishing that they were "person[s] acting under" federal officers within the meaning of section 1442(a)(1). No other basis for federal subject matter jurisdiction having been shown, the actions of Charles Brown and Clarence White are remanded to Texas state court. The court's order of remand is stayed pending completion of appeals.
Dated: Brooklyn, New York
January 29, 1992
Jack B. Weinstein
United States District Judge
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