|
|
 |
|
Protecting citizens' rights in the courts
|
|
||||
|
|
 |
|
||||
|
|
  Petitioner, Respondent. Paul Alan Levy
William G. Kaseberg
Petitioner, Respondent. 1. There Is Clear Conflict Among the Circuits and Other Lower Courts. Respondent disputes the conclusion of both the majority and the dissenter below, Pet. App. 3a, 13a, all of whom frankly acknowledged that the Seventh Circuit's decision squarely conflicts with the Fifth Circuit's decision in Jones v. Roadway Express, 931 F.2d 1086 (1991). According to respondent, the Texas retaliatory discharge cause of action was created by "Art. 8307c of the Texas workers' compensation statute," Mem. at 5. This, it is argued, differs from the Illinois claim which was recognized as a tort by the Illinois Supreme Court in Kelsay v. Motorola, 74 Ill.2d 172, 384 N.E.2d 353 (1978), three years after the 1975 amendment adding paragraph 138.4(h) to the Illinois Workers Compensation Act statute forbidding retaliation for exercise of workers compensation rights. It is respondent's distinction, however, that "turns out to be illusory." Resp. Mem. at 5. The court below ruled that it is federal law, not the state's own characterization, that determines whether a particular claim is based on workers' compensation law, Pet. App. 4a, and that the standard for deciding whether a right falls under the workers' compensation rubric is whether it is a no-fault remedy for industrial injuries, on the one hand, or "a fault-based regime with common law damages," on the other. Pet. App. 5a. Under this definition, claims under the Texas anti-retaliation provision that were protected against removal by the Fifth Circuit in Jones would plainly be removable under the Seventh Circuit's analysis. Moreover, although the Texas action for retaliatory discharge is based on a statute that provides for damages, the statute in question, Tex. Rev. Civ. Stat. Ann. Art. 8307c, 1971 Tex. Gen. Laws 844-845, is, as the Fifth Circuit recognized in Jones, a separate Act, not codified as part of the Workmen's Compensation Act. 931 F.2d at 1091-1092. See also Chatman v. Saks Fifth Avenue, 762 F. Supp. 152, 155 (S.D. Tex. 1991) (allowing removal for that very reason). Nevertheless, the Fifth Circuit concluded that an action under Art. 8307c arose under the workers compensation laws within section 1445(c) because the Article was enacted by the Texas Legislature for the same reason as the Illinois Supreme Court gave for recognizing the cause of action in Kelsay v. Motorola: in order to enforce the policies of the Workers Compensation Act. Indeed, the Kelsay cause of action is based on an Illinois law that is part of the Workers Compensation Act -- it is codified in the workers compensation statute, and it forbids retaliation for exercise of rights under "this Act." The Texas law, by contrast, was passed as a separate Act, and so, instead of referring to "this Act," it forbids discrimination for actions under the "Workmen's Compensation Act." Thus, if there are any differences between the two statutes, the Illinois cause of action is more closely linked to the workers compensation laws than is the Texas statute. Respondent also errs in contending that all of the other lower court decisions that conflict with the decision below are distinguishable because, as in Jones, those states' retaliatory discharge claims were similarly based on an express statutory cause of action. Mem. 12 n.3. Quite to the contrary, several of the cases that we cited in our opening brief involved tort claims based, as in Illinois, on public policies found in a statutory provision that forbids retaliation, without containing an express cause of action to enforce that rule. E.g., Kirkpatrick v. Eby Constr. Co., 708 F. Supp. 1241, 1243 (N.D. Ala. 1989); Roberts v. Citicorp Diners Club, 597 F. Supp. 311, 312 (D. Md. 1984); Thomas v. Kroger Co., 583 F. Supp. 1031, 1035 (S.D. W. Va. 1984), or even on the mere existence of the workers compensation scheme, without even an express anti-retaliation provision. Thompson v. Cort Furn. Rental Corp., 797 F. Supp. 618, 621-622 (W.D. Tenn. 1992). The fact that the state courts consider the discharge claim to be a "separate and independent tort" does not authorize removal. Id. It is true that there are a number of minor differences among the claims allowed by the various states for discharge in retaliation for exercising workers compensation rights. Some are based on provisions of the workers compensation statute itself, and some on provisions in the state employment practices code, e.g., Hummel v. Kamehameha Schools, 749 F. Supp. 1023, 1027 (D. Haw. 1990); some are based on express statutory causes of action, and others are tort claims that enforce public policies stated, with varying degrees of specificity, in the state workers compensation acts. The characteristics that they all share with the Illinois statute is that they are judicially enforceable, fault-based causes of action for damages and reinstatement, and there is no conceivable policy reason why Congress would have wanted these minor differences to control the removability of such claims. Because the lower courts are in hopeless disarray, the Court should grant certiorari to resolve the conflict. 2. The Issue Was Not Implicitly Decided In Lingle v. Norge. Respondent argues that the issue of removability under section 1445(c) of retaliatory discharge claims was implicitly resolved in Lingle v. Norge, 486 U.S. 399 (1988), because the Court reached the merits of the preemption question instead of dismissing for lack of jurisdiction. Mem. 12-14. The flaw in this argument is that objections to removal are waivable so long as the federal court would otherwise have had subject matter jurisdiction. 28 U.S.C. §§ 1445(b), 1447(c). Grubbs v. General Elec. Cred. Corp., 405 U.S. 699, 702 (1972). There is no question that, in this case, as in Lingle itself, the retaliatory discharge claim could have been filed in federal court in the first instance under the diversity jurisdiction. But unlike petitioner here, Lingle did not object to removal in either the district court or the petition for a writ of certiorari.(1) For that reason, the fact that the Court did not discuss section 1445(c) in Lingle does not mean that it implicitly resolved that issue in favor of removability. 3. The Issue of Whether Denial of Removal May Be Challenged After Judgment, or Only by an Interlocutory Appeal, Is Not Properly Before the Court. Although respondent never argued that the Seventh Circuit should not reach the merits of the removal issue, respondent argues that the only proper way to challenge the denial of a motion to remand is by an interlocutory appeal under 28 U.S.C. § 1292(b). Once a judgment is entered on the merits, according to respondent, the case should not be remanded to state court because that would waste judicial resources. Mem. 14-18, citing American Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951), and its progeny. As we explain below, however, respondent's argument is erroneous, and, although there is substantial division among the circuits on the question, the issue should not be decided here both because it was not raised below and because respondent failed to file a cross-petition to bring the issue before this Court. Neither in Finn nor in any other case has this Court upheld removal on the ground that, despite timely objection, the case had been litigated to judgment, and it would be wasteful to allow a remand at that juncture. Finn did cite with apparent approval a line of cases in which litigants who had either removed the case to federal court, or at least failed to object to removal in the trial court, were held to be estopped from objecting to removal after judgment. 346 U.S. at 16-17 and nn.14-15. And in Grubbs v. General Elec. Cred. Corp., 405 U.S. 699, 702 (1972), the Court said that, when a case is removed without objection, the issue on appeal is not whether removal was proper, but only whether there was original subject matter jurisdiction in the district court. Neither case even hinted that a party who objects to removal loses his right to appeal on that issue once the issue is tried to judgment. Two circuits have held, in cases cited by respondent, Mem. 16, that the propriety of removal is a controlling question of law that is appealable under 28 U.S.C. § 1292(b), and that the failure to appeal in this fashion precludes an appeal after judgment. Most circuits, however, allow the propriety of removal to be raised on appeal from the final judgment. Carriere v. Sears Roebuck & Co., 893 F.2d 98, 100 n.2 (5th Cir. 1990); Fakouri v. Pizza Hut of America, 824 F.2d 470, 472 (6th Cir. 1987); Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132, 134 (3d Cir. 1976). These decisions rightly follow the strong presumption that all trial court errors should be corrected by "a single appeal, to be deferred until final judgment has been entered." Digital Equipment Corp. v. Desktop Direct, No. 93-405 (June 6, 1994), Slip. Op. at 3-4. This presumption fully applies to claims that the case is being tried in the wrong forum. Lauro Lines v. Chasser, 490 U.S. 495, 500-501 (1989). After all, although it may waste resources to retry a case if appeal is postponed until after judgment, it would be even more wasteful if every denial of a motion to remand not only may be the subject of an interlocutory appeal, but must be appealed in order to preserve the removal issue for review. Courts of appeals routinely warn that, to avoid piecemeal appeals, section 1292(b) may only be invoked in truly "exceptional" circumstances. E.g., Fisons Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir. 1972). Although this conflict between the circuits may be worth resolving in an appropriate case, it is not necessary for the Court to consider it here, because respondent both failed to preserve the issue below, and failed to file a cross-petition for a writ of certiorari presenting the question for the Court's consideration. The failure to raise the issue below is especially significant because 28 U.S.C. § 1292(b) makes the allowance of an interlocutory appeal on questions of controlling law highly discretionary. The judgment of whether this is the kind of case in which it would have been appropriate to allow an interlocutory appeal, and whether the failure to undertake such an appeal was therefore excusable, is one that the court of appeals should have been permitted to make in the exercise of its own sound discretion, and should not be presented to this Court in the first instance. It is especially hard to imagine a lawyer obtaining an interlocutory certification here, given the Seventh Circuit's holding in Lingle that the Illinois workers' compensation retaliatory discharge cause of action does not arise under Illinois law. A lawyer could well have been sanctioned for raising that issue by a section 1292(b) appeal, in a circuit not known to be shy about using Civil Rule 11 or Appellate Rule 38. Respondent's final contention is that, because the law was clearly on its side on the retaliatory discharge claim, it would be wasteful to allow a remand to state court. But respondent did not win a summary judgment or directed verdict in the trial court, and it cannot deny that different procedures, judges, and jury pools can easily make the difference in the outcome of trials. Nor, indeed, is the law settled on the propriety of firing an employee because of his absence from work as required to seek total temporary disability benefits for a genuinely temporary injury. The Illinois state court cases in respondent's string-citation, Mem. at 1, do not support its contention in that regard. Some of the cases did not even involve employers that had used absence from work, as opposed to some other justification for discharge. In the others, the employees had incurred injuries that kept them from working at their old jobs for months or even years, and the state courts held that the employers could decide that the injuries were no longer temporary but permanent, and fire the injured employees and replace them with individuals who were capable of working. Petitioner contends that, even if the employer's justification is not pretextual, a discharge for a truly temporary absence should receive a different legal treatment. He wants to make that argument in the state courts because, as the petition noted, and respondent does not deny, they have proved far more sympathetic than the Seventh Circuit has to arguments to extend Illinois retaliatory discharge law. The case should be remanded to permit that question to be litigated in the courts that have the power to revise and expand state law claims in this way. The petition for a writ of certiorari should be granted. Respectfully submitted,
Paul Alan Levy (Counsel of Record) Alan B. Morrison Public Citizen Litigation Group
William G. Kaseberg
Attorneys for Petitioner June 30, 1994 1. The removability issue had been properly preserved in a companion case, Martin v. Carling Nat'l Breweries, which undersigned lead counsel argued en banc in the Seventh Circuit together with Lingle v. Norge. Certiorari was not sought in Martin until after the petition in Lingle had been granted, however, and the Martin petition was simply held until Lingle was decided. more resources
Because Public Citizen does not accept funds from corporations, professional associations or government agencies, we can remain independent and follow the truth wherever it may lead. But that means we depend on the generosity of concerned citizens like you for the resources to fight on behalf of the public interest. If you would like to help us in our fight, click here. |
|
Join | Contact PC | Contribute | Site Map | Careers/Internships| Privacy Statement | |||