Remands by deception.

• Author: Janssen, William M.
• Position: Introduction through II. Remands by Deception A. Barlow v. Colgate: The Factual Setting, p. 75-100

INTRODUCTION

"[R]ecurring, decades-old, hand-to-hand combat." (1) That is how one circuit judge described removal-and-remand litigation fights in federal court.

It is a characterization apt in both fact and metaphor. In point of fact, the fights that mark removal-and-remand litigation contests are often pitched ones: frequently intense, expensive, and prolonged. (2) They have been that way for many years. (3) Faithful to the military metaphor, these fights can be indisputably decisive and terribly wasteful. They are contests to decide the place of battle, and as military strategists have conspired for millennia, choosing wisely the place of battle can often foretell the outcome of the fight. (4) On the other hand, they have the potential, like all combat engagements, to languish on interminably for months (or years) (5) with little claimed ground to show as a prize. (6) From either perspective, this much is certain: removal-and-remand litigation is usually only the precursor to the merits, not the main event. The substantive merits fight will still lie waiting a resolution either in a courtroom or over a negotiating table.

Because removal-and-remand litigation nearly always postpones the ultimate resolution of the underlying merits dispute, Congress long worried over the mischief this costly, delaying, collateral litigation could wreak on both the federal and state judicial systems (and on federalism more generally). (7) To contain that mischief, Congress devised a mechanism to bring a swift and decisive close to such satellite litigation: it invested the federal trial judges with generally unreviewable autonomy in making remand decisions. Under Congress's approach, the federal trial judges' decisions on remand were to be made by them, and by them only once; and then once made, those decisions were to be final--as to both the deciding judges who issued them and to all appellate tribunals thereafter. (8) This plan, Congress devised, would at least eliminate the specter of collateral appellate litigation over remand decisions grinding on interminably. (9) The Judiciary Code announces this plan crisply--remand orders are "not reviewable on appeal or otherwise," (10) except in very few, narrow exceptions. (11) Such has been "the established rule ... stretching back to 1887," when Congress first installed this no-review directive. (12) By 1946, the conclusiveness of this directive was so well settled that the U.S. Supreme Court declared it "no longer open to doubt." (13)

But what if the trial judge's decision to grant the remand was premised on a lie? Not a non-partisan lie, mind you, but a litigant's lie. And not some grey-area, stretching-of-the-truth, overly aggressive, leaping misstep in advocacy, but a genuine fabrication. A bald, bold-faced falsehood, calculated deliberately to deceive the federal judge into a factual conclusion that the litigant invented intentionally to spur the court into signing a remand order.

What then?

Congress directs that there be no remand reviews; indeed, Congress "unmistakably commands" it. (14) Does that proscription apply to deceptively-induced remand orders? Or may a hoodwinked judiciary rescind its fraudulently produced (and otherwise "unreviewable") remand and deny the miscreants their state-forum booty?

This Article explores that conundrum. Part I introduces the preliminaries of removal, remand, and Congress's no-review directive, supplying an orientation to the background of these concepts, their purpose, and their operation. Part II discusses the only appellate resolution to have ever squarely confronted this question, the Fourth Circuit's opinions in Barlow v. Colgate Palmolive Co. (15) Part III conducts the statutory analysis to evaluate whether Congress has indeed enacted a statute that actually forestalls the federal judiciary's ability to protect itself against fraud in the remand process. After exploring the nuances of the statute's language, the guide of "ordinary meaning," and the lessons of congressional intent, this Article concludes that, notwithstanding the seemingly absolutist, prohibitory language of Congress's no-review statute, deceptively-induced remands can be vacated by the courts. Part IV considers the potential impacts of such a conclusion and finds that a robust, longstanding body of existing law serves to ensure stability and predictability in this use of the vacatur power.

1. PRELIMINARIES: REMOVAL, REMAND, AND THE NO-REVIEW DIRECTIVE

   In the law, as in life, "[c]ontext matters." (16) On its face, the no-review directive expresses a seemingly unrelenting legislative preference for a one-judge, single-ruling treatment of remand motions. But because context matters, the no-review directive must be understood in its procedural environment. To truly "give meaningful effect to the intent of the enacting legislature, [courts] must interpret statutory text with reference to the statute's purpose and its history." (17) So, to preliminaries this Article now turns and, more specifically, to the context of federal removal, remand, and Congress's no-review statutory directive.

   1. Removal to Federal Court

      The foundational objective of the federal removal statute is easily understood by a metaphor--a horse tale. The Baltimore Colts professional football club played their home games in "the world's largest outdoor insane asylum." (18) Actually, the facility's official name was Memorial Stadium (so named to honor the City of Baltimore's deceased World War I and World War II soldiers), (19) but the nickname proved a fitting one. The team was the first with cheerleaders, the first with a mascot ("Dixie" the colt), the first with nattily logo-emblazoned helmets, and the first with fan clubs; Baltimore's franchise also sported a dazzling marching band, packed the golden arm of future Hall-of-Fame quarterback Johnny Unitas, galvanized the nation in 1958 with their sudden-death overtime win in the "greatest game ever played," and hoisted three championship trophies to measure out their seven-teen post-season appearances. (20) Truly, the Colts and the City of Baltimore had something very special together. As one columnist reminisced, "The love affair between the team and its fans was all-consuming and pristine, exuding the kind of passion that can come only once in the sports-life of a city." (21) Little surprise, then, that the divorce was bitter and ugly.

      After years of unfruitful talks to coax Baltimore into building a modern facility to replace the aging Memorial Stadium, the Colts' owner, Robert Irsay, opened negotiations with other cities to explore a possible relocation of the team. (22) When those talks turned ominous, the Maryland legislature responded by authorizing the forcible seizure of the team by eminent domain. (23) The night before the government could finish up its eminent domain authorization, the Colts' owner arranged for a fleet of moving vans to slip into the old stadium at 2:00 a.m. to decamp the team, all its possessions, and its legendary horseshoe logo out of the city under cover of darkness. (24) Morning broke to an empty Memorial Stadium and an enraged, heartbroken city. (25)

      The following day, the City of Baltimore leapt into action, filing a petition to condemn the Colts and thereupon to restrain the team from transferring assets away from Baltimore. (26) The tribunal selected to hear this petition was a predictable one--the local Circuit Court of Baltimore County--where the petition received a homey reception: the Circuit Judge issued an injunction, lickety-split, to forbid the...