[00:00:00] Speaker 01:
Case number 19-5174.

[00:00:03] Speaker 01:
Brian Hammer, appellant versus United States of America.

[00:00:07] Speaker 01:
Mr. Dick, appointed amicus curie for appellant.

[00:00:10] Speaker 01:
Mr. Hammond for the appellee.

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Mr. Dick is now unmuted.

[00:00:18] Speaker 04:
Good morning and may it please the court.

[00:00:20] Speaker 04:
Anthony Deck for the court appointed amicus in support of appellant Brian Hammer.

[00:00:27] Speaker 04:
The clear text of the statute in question resolves this case.

[00:00:31] Speaker 04:
And because that text is so clear, there's really nothing for the court to do other than follow it unless it leads to an absurd result, a rational result.

[00:00:42] Speaker 04:
That's quite the high bar.

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And the government cannot come close to meeting it in this case.

[00:00:48] Speaker 04:
The statute provides simply that if at any time before final judgment, it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.

[00:00:57] Speaker 04:
That's 28 USC 1447C.

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The shall in that sentence is mandatory.

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There's nothing in the text that suggests it has anything other than its ordinary mandatory meaning.

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And for that reason, the case shall be remanded.

[00:01:13] Speaker 03:
There's no question among parties that- Mr. Dick, if we agree with you and require the district court to remand

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this to the spirit court?

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Won't the spirit court just dismiss the case?

[00:01:32] Speaker 04:
It likely will.

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I believe it should.

[00:01:34] Speaker 03:
But that's not- Under what could it, why wouldn't that?

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Can you imagine the circumstances under which it wouldn't?

[00:01:44] Speaker 04:
Well, if the complaint were amended, it's possible, I suppose.

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It might not.

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But in the case as it is now, I think the proper thing for that court to do would be to decide the sovereign immunity issue and then dismiss the case.

[00:01:56] Speaker 02:
Mr. Hammer could have amended while the case was in the district court, couldn't he?

[00:02:01] Speaker 04:
I think there are different rules that apply in state and federal court for amendments to be allowed or not.

[00:02:07] Speaker 02:
Well, in federal court, there was no response of pleading.

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So he didn't need leave of the court or the concurrence of the United States to amend.

[00:02:20] Speaker 02:
But he didn't do it.

[00:02:22] Speaker 04:
That's correct, Your Honor.

[00:02:25] Speaker 04:
But I think the issue is not so much what would happen on remand.

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The question is whether the court is obligated to follow the plain text of the statute, which puts the who decides question in the court of the state court rather than the federal court.

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And I think- Doesn't 1447 seek conflict with 28 USC 1631?

[00:02:53] Speaker 04:
1631, is that the transfer statute you're on?

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Right.

[00:03:00] Speaker 02:
You have 1447C saying you shall remand and you have 1631 saying that you may transfer the case to a court that has jurisdiction.

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Correct.

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They're in tension, aren't they?

[00:03:16] Speaker 04:
I don't think they conflict because as I say in the brief, I think the transfer statute 1631 applies only to

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cases that are filed in the court.

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So I don't think it applies here.

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Even if the court disagrees and thinks that there is a conflict, I think that the narrow carve out of the May in 1631 authorizes a transfer.

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And there's a specific carve out from then the remand.

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So to the extent there's a conflict, it would allow the case to be transferred at most.

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But that's very different from allowing it to be dismissed.

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And I think there's, again, a rational

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purpose for that because the court, excuse me, Congress wanted to create a system where the case would be channeled to the proper forum and would not be dismissed.

[00:04:03] Speaker 02:
Well, wait a minute, wait a minute.

[00:04:04] Speaker 02:
This doesn't channel the case to a proper forum.

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It channels the case to a court that has no jurisdiction.

[00:04:14] Speaker 04:
Well, it's a proper forum in the sense that it is the forum that Congress designated as resolving any jurisdictional

[00:04:20] Speaker 04:
defense in the case.

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So Congress could rationally decide what the text says.

[00:04:25] Speaker 04:
That is, if there's a case filed in a state court and there's a jurisdictional defense to be raised, a federal jurisdictional defense to be raised, that should be finally and conclusively resolved in the state court.

[00:04:37] Speaker 04:
That's the best way to respect federalism because we assume that state courts can resolve federal issues that are raised as a defense in the ordinary course.

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And if the plain text of the statute is followed,

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it's also going to deter the government from removing this type of case and pointlessly burdening the federal courts.

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Because if the court does what the statute says, the government will know that it should just assert the very simple sovereign immunity defense in the state court, get that resolved there rather than coming into the federal courts.

[00:05:07] Speaker 02:
So the case gets, under your theory, the case gets remanded to the superior court of the District of Columbia, correct?

[00:05:13] Speaker 04:
Correct.

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And why can't the government then remove it again?

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Well, because presumably it wouldn't want to engage in that kind of Sisyphean exercise where it would only have to be removed.

[00:05:25] Speaker 02:
There's nothing that would stop the government from doing that.

[00:05:30] Speaker 04:
I think that's correct, although there is, I believe, a provision in 1447C that allows the court to impose attorney's fees.

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So it says, in order of remaining the case, may require payment of just costs and any actual expenses, including attorney's fees.

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I think if the government engaged in that kind of abusive behavior, it would start having to pay the costs.

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Mr. Hammer doesn't have an attorney, does he?

[00:05:56] Speaker 04:
I don't believe he does right now, but there are the costs associated with the case.

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Why wouldn't law of the case and or collateral stop or apply?

[00:06:08] Speaker 04:
Well, because there would be no final judgment that would be binding on the lower court.

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So it would be a dismissal without prejudice.

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The district court would have ruled it didn't have jurisdiction.

[00:06:20] Speaker 04:
That's right.

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That's right.

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So as I understand, and the government hasn't argued this, I think the reason for that is, as I understand it, for purposes of collateral estoppel, a dismissal for lack of jurisdiction does not have a binding effect in another proceeding.

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So I think the state court

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So your theory is that by enforcing this statute, by having this court say shall means shall, it's got to dismiss it, that in the future, the government won't seek to remove cases like this anymore.

[00:06:53] Speaker 03:
It'll just move to dismiss on sovereign immunity grounds in the Superior Court.

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That's your theory.

[00:06:59] Speaker 04:
Correct.

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And again, I think it's a very low threshold because the question before the court is not what the court thinks makes the most sense.

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not what even it thinks Congress was trying to do.

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We have a statute, we have clear text, and so the only question is whether the absurdity doctrine kicks in.

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That's an extremely high bar.

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It does not authorize courts to rewrite the statutes that Congress passed.

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It's just, is this irrational?

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And I don't think you can say it's irrational.

[00:07:24] Speaker 02:
There's another doctrine that is not embodied in any statute that the Supreme Court has recognized since its decision in Bellevue Hood in 1947.

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And that is that if a complaint is totally frivolous, then you can dismiss it without even deciding jurisdiction.

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And that Mount Healthy, I think, is another Supreme Court case.

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Bellevue Hood is the leading case.

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Why doesn't that apply here?

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The Superior Court clearly has no jurisdiction and the Court of Claims has already decided that this is not a contract action.

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So no matter which case or which court the case gets remanded or transferred to, Mr. Hammer is going to lose.

[00:08:15] Speaker 04:
Well, I think that's probably right, Your Honor, but I think that the statute really is quite clear, and to the extent there's any conflict with that doctrine.

[00:08:23] Speaker 04:
Again, that's not a doctrine that the government has argued in this case, so I can't claim... No, it's jurisdictional, though.

[00:08:28] Speaker 02:
I mean, it's at least a quasi-jurisdictional question.

[00:08:32] Speaker 04:
Right, I agree.

[00:08:32] Speaker 04:
As I recall from my time clerking looking at an issue like this, if there's a totally frivolous claim, that would be another basis to say that subject matter jurisdiction is lacking.

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And again,

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I think that answers the question of whether there's jurisdiction, and then the question of what to do about that is answered.

[00:08:48] Speaker 03:
It would still have to be, it would still, under your theory, even if the district court had invoked that theory, that jurisdictional theory, it would still have had to remand it, right?

[00:08:59] Speaker 04:
Correct.

[00:09:00] Speaker 04:
Yes, that's correct.

[00:09:01] Speaker 04:
The statute says once you decide there's no jurisdiction, you shall remand it.

[00:09:06] Speaker 00:
But just so that I'm clear on how you think that all of this works,

[00:09:11] Speaker 00:
If we wrote a hundred page opinion explaining why the government is protected by sovereign immunity here, let's just for the sake of argument, and then we ordered the case remanded.

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Your view is that the superior court could decide a new whether

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the government is protected by sovereign immunity and would not be bound by our decision in any chance and could reach a different conclusion.

[00:09:52] Speaker 04:
Yes, that's correct.

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Because of the statute Congress enacted and the clear text of that, which does not lead to an irrational result.

[00:09:58] Speaker 04:
It's not irrational to say, we want the state court to have the authority to resolve the scope of its own jurisdiction in a case filed in that court.

[00:10:07] Speaker 00:
And if the state court, let's say we find the United States is protected by sovereign immunity, it gets remanded, the superior court disagrees, and the government gets a judgment against it, and it appeals, where does that appeal go to?

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The District of Columbia Court of Appeals or to this court?

[00:10:33] Speaker 04:
goes to the DC Court of Appeals.

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And then, of course, there's a direct appeal, or I should say, a certiorari available to the US Supreme Court from there.

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So there is a federal backstop.

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But I think it's, in this type of case, quite unlikely you're ever going to need that, because I think the presumption is that state courts are quite capable of handling this type of issue.

[00:10:53] Speaker 04:
It's not a terribly complicated issue in this case, at least.

[00:11:00] Speaker ?:
OK.

[00:11:00] Speaker 03:
I'm sorry, do you have something else, Judge Wilkins?

[00:11:03] Speaker 00:
So just so that I'm clear, you believe that what the Congress intended, or at least what the text of the statute requires, is that if we decide an issue of subject matter jurisdiction that involves sovereign immunity,

[00:11:25] Speaker 00:
that essentially is for naught because it gets sent back to the Superior Court to decide it again, and they could decide it differently, and the DC Court of Appeals could decide it differently.

[00:11:38] Speaker 00:
So Congress intended for the decision of the DC Court of Appeals to be the operative decision in that instance rather than ours.

[00:11:51] Speaker 04:
Yes, Your Honor.

[00:11:52] Speaker 04:
I think it's really more of what the statute says than it necessarily is what Congress intended.

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Because as many of the cases that I cite say, there is a statute that is the law.

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And even if Congress may not have intended that, what has the force of law is the text that both houses voted on and the president signed.

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So it may be possible that Congress didn't intend this result.

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But this is what the words that Congress enacted require.

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I don't think they're absurd.

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And I think that ends the case.

[00:12:21] Speaker 03:
Okay.

[00:12:22] Speaker 03:
Thank you, Mr. Deck.

[00:12:24] Speaker 03:
We'll hear from the government.

[00:12:28] Speaker 01:
Good morning, Your Honors.

[00:12:29] Speaker 01:
May it please the court.

[00:12:30] Speaker 01:
My name is Derek Hammond, and I'm here today on behalf of the appellate United States.

[00:12:34] Speaker 01:
The issue here is quite narrow.

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It is whether the district court correctly concluded that dismissal rather than a remand back to the state court was appropriate when the government successfully asserted its federal sovereign immunity.

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The answer to that question is yes.

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In every case brought against the United States, the plaintiff must be able to identify a statutory waiver of the government's sovereign immunity.

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And in this case, Mr. Hammer's sole claim was a purported contract claim against the United States for $37,000.

[00:13:00] Speaker 01:
Under the Tucker Act, the only court in the country authorized to adjudicate such a claims is the U.S.

[00:13:07] Speaker 01:
Court of Federal Claims.

[00:13:09] Speaker 01:
Thus, there is no dispute that neither the district court nor the state court from which this action originated had jurisdiction to entertain this case.

[00:13:18] Speaker 01:
Nevertheless, we're arguing over whether 1447C requires some sort of a different result to remanding the case back to the DC Superior Court, which plainly had no jurisdiction to hear it.

[00:13:30] Speaker 01:
That construction fails to account for the statutory context and yield a patently absurd result.

[00:13:37] Speaker 03:
I mean, it isn't- Well, won't the Superior Court just dismiss the case?

[00:13:43] Speaker 01:
Well, if we are to take- Why is that so absurd?

[00:13:48] Speaker 01:
Well, it invites the district court, or I'm sorry, the state court perhaps not to dismiss.

[00:13:53] Speaker 01:
And then we have these conflicting.

[00:13:57] Speaker 03:
I know the argument that Mr. Dick made, but can you imagine any circumstances under which the Superior Court would not dismiss the case?

[00:14:06] Speaker 03:
I mean, you don't even think, you have, you say, you don't even seem to think the Superior Court is gonna go rogue here

[00:14:18] Speaker 03:
You have, you say in footnote eight that one can hardly imagine a case in which a district court and on and on, right?

[00:14:31] Speaker 03:
So this isn't gonna happen.

[00:14:32] Speaker 03:
And so why is it futile?

[00:14:34] Speaker 03:
Why, I mean, for us to invoke the absurdity doctrine, it has to be, the results has to be, and this is the language we've used demonstrably at odds,

[00:14:46] Speaker 03:
with the intention of Congress, of its drafters?

[00:14:49] Speaker 03:
I mean, sure, maybe they didn't think about this one aspect of it, but is that really demonstrably at odds with the intention of the drafters?

[00:14:59] Speaker 01:
I think sending a case back to a state court that Congress explicitly said should be somewhere else is demonstrably at odds with what they intended.

[00:15:09] Speaker 01:
They intended this kind of case to be brought in the US Court of Federal Claims, not in the state court.

[00:15:14] Speaker 01:
It's also at odds with 1442A because we know based on Willingham v. Morgan that Congress has decided that federal officers and indeed the federal government itself require the protection of a federal forum.

[00:15:29] Speaker 01:
And so, and that they amended 1442A specifically so that questions involving federal immunity would be resolved once and for all in a federal forum.

[00:15:41] Speaker 01:
So- That statute doesn't, I'm not sure that helps you.

[00:15:45] Speaker 03:
Does it, that 1442A1 says, uses the word may, right?

[00:15:54] Speaker 01:
Yes, it gives the government an option to remove to federal court.

[00:15:58] Speaker 03:
My only point of mentioning that is Congress clearly knows the difference between may and shall.

[00:16:03] Speaker 01:
perhaps, but it also knew how to require the showing of subject matter jurisdiction before granting the power to remove because that's what it did under 1441.

[00:16:17] Speaker 01:
It said that you have to have some sort of subject matter jurisdiction before you can remove and that's not present in 1442a.

[00:16:23] Speaker 01:
So they clearly thought about and decided against requiring that sort of showing before the removal can be affected.

[00:16:31] Speaker 01:
And

[00:16:33] Speaker 01:
So both of these, both the Tucker Act and 1442A demonstrate that sending this back down to a state court that no one argues has subject matter jurisdiction is a waste of judicial resources and party resources.

[00:16:49] Speaker 01:
And it's particularly important here when we're talking about an issue of immunity, because as the Supreme Court recognized in Siegert v. Gilley,

[00:16:57] Speaker 01:
One of the purposes of immunities is to spare a defendant not only unwarranted liability but unwarranted demands customarily imposed upon those defending a long drawn-out lawsuit.

[00:17:08] Speaker 01:
And this only has the effect of sending it to the federal court, sending it back down to the state court, and perhaps letting it continue on.

[00:17:15] Speaker 01:
And I would also like to point out that while sovereign immunity may be a fairly straightforward issue in our case, it's not always the case that sovereign immunity is so straightforward.

[00:17:25] Speaker 01:
And if the state court were to say perhaps sovereign immunity is not, there is a waiver in this case and it's allowed to continue.

[00:17:34] Speaker 01:
Well, now the case is stuck in state court.

[00:17:37] Speaker 01:
There is no mechanism for the government to get back to the federal court because under 1446 B, a removal can only happen within the first 30 days of service of the pleading.

[00:17:47] Speaker 01:
So there could not be a further removal to federal court.

[00:17:52] Speaker 01:
Once the case is remanded back to state court, the government is stuck there.

[00:17:55] Speaker 01:
the only way it can get a review of a decision that it hasn't waived its sovereign immunity, or excuse me, that it has waived its sovereign immunity, is to find its way up into the Supreme Court.

[00:18:07] Speaker 01:
That's clearly not what Congress intended here.

[00:18:10] Speaker 01:
Congress thought about and specifically amended 1442A to ensure that the case

[00:18:16] Speaker 01:
that these sorts of defenses are raised and adjudicated in a federal forum.

[00:18:20] Speaker 01:
And that the next stop, if the district court concludes that there is no sovereign immunity has not been waived, the next stop is to a US court of appeals.

[00:18:33] Speaker 01:
These are courts that are expert in dealing with federal issues like this, such as sovereign immunity.

[00:18:40] Speaker 00:
Just a question about the Tucker Act.

[00:18:46] Speaker 00:
The Tucker Act never says in 1491A1 that the jurisdiction of the Court of Federal Claims is exclusive.

[00:19:00] Speaker 00:
It doesn't use the words exclusive, does it?

[00:19:05] Speaker 01:
That is correct, Your Honor.

[00:19:07] Speaker 01:
It is a construction, it is construed to be exclusive in this court, construed it that way in Green Hill v. Spellings, because there is no other statute that waives the government's sovereign immunity for a contract claim in excess of $10,000.

[00:19:23] Speaker 00:
I raise that because some of the cases that have employed this futility doctrine

[00:19:33] Speaker 00:
to say that, well, yeah, the statute says shall remand, but we should read, you know, all of the statutes in context.

[00:19:43] Speaker 00:
And we can dismiss if we're reading everything in context.

[00:19:48] Speaker 00:
Dismissal is the appropriate remedy.

[00:19:50] Speaker 00:
They have relied on the fact that, well, there's another statute

[00:19:55] Speaker 00:
that says that the only case you can, I'm sorry, the only court that you can bring this in is, you know, this court or that explicitly requires dismissal and here you don't have that explicit language.

[00:20:13] Speaker 00:
Why isn't that a problem?

[00:20:15] Speaker 01:
Because the rule of sovereign immunity is that it's effectively no court can hear it unless there is a statutory waiver.

[00:20:23] Speaker 01:
So that is akin to the statute that you're referring to in your hypothetical or in one of the cases you've read.

[00:20:30] Speaker 01:
because it says no other court.

[00:20:32] Speaker 01:
And Congress is operating under that framework.

[00:20:35] Speaker 01:
So when it says this court has jurisdiction to hear this case, but it doesn't delineate any other court, federal or state, that means that you can only go this route.

[00:20:46] Speaker 01:
And that's how the courts have consistently interpreted this framework under the Tucker Act.

[00:20:55] Speaker 02:
That's despite 1331, which says the district court shall have jurisdiction, uses the word shall.

[00:21:03] Speaker 02:
Right?

[00:21:03] Speaker 02:
That's correct, Your Honor.

[00:21:06] Speaker 02:
Right.

[00:21:06] Speaker 02:
And to get back to a point I made to Mr. Dick is that despite 1331 and saying that the district court shall have jurisdiction, the Supreme Court has upheld the doctrine that that doesn't apply when the complaint is totally frivolous.

[00:21:25] Speaker 02:
The shall doesn't apply.

[00:21:28] Speaker 02:
Why isn't the same thing true here?

[00:21:31] Speaker 02:
Exactly, Your Honor.

[00:21:33] Speaker 00:
So help me understand what, if any, collateral estoppel effect the Court of Federal Claims' prior decision has, because the district court relied on that below, right?

[00:21:49] Speaker 00:
Yes, Your Honor.

[00:21:53] Speaker 00:
How and why does collateral estoppel apply to that ruling?

[00:21:58] Speaker 00:
Or are you relying upon that aspect of the district court's ruling?

[00:22:03] Speaker 01:
Well, to the extent that everyone agrees that there's no subject matter jurisdiction here, the only import that that would have at this point would go to the question of why you shouldn't transfer the case.

[00:22:17] Speaker 01:
And under 1631, you only transfer if it would be in the interest of justice.

[00:22:23] Speaker 01:
Um, and where the, that court has already passed upon this exact question, it really isn't in the interest of justice to transfer it.

[00:22:32] Speaker 01:
And I think that, so the collateral estoppel issue comes into play there.

[00:22:36] Speaker 01:
Um, and this court said in Daniel's V, uh, department of interior that a transfer that would be wasteful is just not in the interest of justice under 1631.

[00:22:46] Speaker 00:
So, so you don't think that collateral estoppel has any role in

[00:22:53] Speaker 00:
in our decision whether to dismiss versus remand?

[00:23:00] Speaker 01:
No, I don't believe it.

[00:23:01] Speaker 01:
It required when we're dealing strictly with the issue of sovereign immunity and the remand, I don't believe it.

[00:23:09] Speaker 01:
The court needs to consider it apart from the 1631 inquiry.

[00:23:14] Speaker 01:
I see that my time is up.

[00:23:16] Speaker 01:
Let's see.

[00:23:19] Speaker 03:
Judge Wilkins or Judge Randolph, any other questions?

[00:23:21] Speaker 03:
No.

[00:23:22] Speaker 03:
No.

[00:23:22] Speaker 03:
OK.

[00:23:23] Speaker 03:
Thank you.

[00:23:24] Speaker 03:
Mr. Dick, you were out of time, but you can have one minute.

[00:23:28] Speaker 04:
Thank you, Your Honor.

[00:23:28] Speaker 04:
I just want to make sure to direct the court's attention

[00:23:32] Speaker 04:
The previous statute that existed before the current version of 1447 C and you can look at that in on page 19 of the reply brief footnote three.

[00:23:41] Speaker 04:
I think that gives a good example of how Congress could have written the statute.

[00:23:45] Speaker 04:
If it wanted to provide the option to dismiss or remain.

[00:23:48] Speaker 04:
So what that statute said before the 1948 amendment.

[00:23:51] Speaker 04:
is that the courts had the option to, quote, dismiss the suit or remand it to the court from which it was removed as justice may require.

[00:23:59] Speaker 04:
So in 1948, the statute was amended to say the case shall be remanded.

[00:24:04] Speaker 02:
Was that a general revision of the U.S.

[00:24:07] Speaker 02:
code, of the judicial code?

[00:24:12] Speaker 04:
Yes, Your Honor, I believe that it was there.

[00:24:14] Speaker 02:
Was there a notation that said that the changes were stylistic only?

[00:24:20] Speaker 04:
I'm not aware of that.

[00:24:22] Speaker 02:
If it says that, if in the revision of the code it says that, that means that the new version of 1447C is to be construed in the same manner as the old version, correct?

[00:24:37] Speaker 02:
That's what stylistic means.

[00:24:40] Speaker 04:
I suppose if it were to say it's stylistic and that we're binding, that's correct.

[00:24:45] Speaker 02:
Although it doesn't have to say binding.

[00:24:46] Speaker 02:
There's Supreme Court cases saying if it just says stylistic only, then you can screw them as the same.

[00:24:54] Speaker 02:
That's an interesting point.

[00:24:56] Speaker 02:
Take a look at that.

[00:24:57] Speaker 04:
Yeah.

[00:24:57] Speaker 04:
If the, what I meant was if the annotation were binding, then yes, but I wouldn't think that would override the, again, the text, the clear text that's in the actual statute that says shall remand

[00:25:08] Speaker 04:
I think that is the clear text of what it means.

[00:25:12] Speaker 04:
There's no linguistic ambiguity in the text, and it's not absurd to reach that result.

[00:25:17] Speaker 04:
And for that reason, I think the decision below should be reversed, and the case should be remanded back to the DCC.

[00:25:23] Speaker 03:
OK.

[00:25:25] Speaker 03:
Thank you.

[00:25:26] Speaker 03:
Mr. Dick, you were appointed by the court to serve as amicus.

[00:25:30] Speaker 03:
You did a fine job, and we are grateful to you for your assistance.

[00:25:33] Speaker 03:
Case is submitted.

[00:25:34] Speaker 03:
Thank you.