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PRECEDENTIAL

Filed July 31, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 02-1426, 02-1491, 02-1492, 02-1528
02-1652, 02-1664, 02-1688, 02-1741

IN RE: FEDERAL-MOGUL GLOBAL, INC.

DaimlerChrysler Corporation; Ford Motor Company;
General Motors Corporation,
Appellants in No. 02-1426

IN RE: FEDERAL-MOGUL GLOBAL, INC.

Hennessy Industries, Inc.,
Appellant in No. 02-1491

IN RE: FEDERAL-MOGUL GLOBAL, INC.

MG Rover Group, Inc.; Nissan North America, Inc.;
Volkswagen of America, Inc.; Volkswagen AG;
Mercedes-Benz USA, LLC; BMW North America, Inc.;
Volvo Cars North America, Inc.; Harley-Davidson
Motor Company Group, Inc.,
Appellants in No. 02-1492

IN RE: FEDERAL-MOGUL GLOBAL, INC.

Salvo Auto Parts; Holman Enterprises, Inc.;
B.F. Goodrich, Inc.,
Appellants in No. 02-1528

IN RE: FEDERAL-MOGUL GLOBAL, INC.

Honeywell International, Inc.,
Appellant in No. 02-1652

IN RE: FEDERAL-MOGUL GLOBAL, INC.

British Motor Cars Distributors, Inc.,
Appellant in No. 02-1664

IN RE: FEDERAL-MOGUL GLOBAL, INC.

Official Committee of Unsecured Creditors,
Appellant in No. 02-1688

IN RE: FEDERAL-MOGUL GLOBAL, INC.

International Truck and Engine Corp.,
Appellant in No. 02-1741

On Appeal from the United States District Court
for the District of Delaware

(D.C. No. 01-10578)

District Judge: Hon. Alfred M. Wolin

Argued June 17, 2002

Before: SLOVITER, COWEN and GIBSON,*
Circuit Judges

(Filed: July 31, 2002)

_________________________________________________________________

* Hon. John R. Gibson, Senior United States Circuit Judge for the United

States Court of Appeals for the Eighth Circuit, sitting by designation.

David M. Bernick (Argued)
John Donley
Douglas G. Smith
Kirkland & Ellis
Chicago, IL 60601

Christopher Landau (Argued)
Eric B. Wolff
Kirkland & Ellis
Washington, D.C. 20005

Attorneys for Appellants
DaimlerChrysler Corp., Ford Motor
Co., and General Motors Corp.

Arthur Makadon (Argued)
William A. Slaughter
Robert R. Baron, Jr.
Peter C. Amuso
Ballard Spahr Andrews & Ingersoll
Philadelphia, PA 19l03

Attorneys for Appellants
Honeywell International, Inc.

Charlene D. Davis
Eric M. Sutty
The Bayard Firm
Wilmington, DE 19899

Robert B. Millner (Argued)
Peter D. Wolfson
Andrew P. Lederman
Sonnenschein, Nath & Rosenthal
Chicago, IL 60606

Attorneys for Appellant
Official Committee of Unsecured
Creditors

David E. Wilks
White & Williams
Wilmington, DE 19899

Attorney for Appellants
MG Rover Group, Inc., Nissan
North America, Inc.,Volkswagen
America, Volkswagen AG,
Mercedez-Benz USA, BMW of
North America, Volvo Cars North
America, Harley Davidson Motor
Co., International Truck & Engine
Corp., British Motor Cars
Distributors, Inc.

Lee Baylin
Towson, MD 21204

Attorney for Appellant
Salvo Auto Parts, Inc.
Michael A. Stover
Whiteford, Taylor & Preston
Baltimore, MD 21202

Attorney for Appellant
Holman Enterprises, Inc.

Douglas F. Murray
Whiteford, Taylor & Preston
Baltimore, MD 21202

Attorney for Appellant
BF Goodrich, Inc.

Henry A. Heiman
Heiman, Aber, Goldlust & Baker
Wilmington, DE 19899

Attorney for Appellant
Hennessy Industries, Inc.

Alan B. Rich (Argued)
Baron & Budd
Dallas, TX 75219

Robert T. Haefele
Wilentz, Goldman & Spitzer
Woodbridge, NJ 07095

Jonathan A. Smith-George
Law Office of Jonathan A.
Smith-George
Newport News, VA 23601

Robert Paul
Philadelphia, PA 19103

Marla R. Eskin
Wilmington, DE 19801

Ronald L. Motley
Nancy Worth Davis
Ness Motley Loadholt Richardson
& Poole
Mount Pleasant, SC 29465

Attorneys for Appellee
Consolidated Asbestos Claimants

Elihu Inselbuch (Argued)
Caplin & Drysdale
New York, NY 10022

Trevor W. Swett, III
Peter Van N. Lockwood
Albert G. Lauber
Caplin & Drysdale
Washington, D.C. 20005

Matthew G. Zaleski, III
Campbell & Levine
Wilmington, DE 19801

Attorneys for Appellee
Official Committee of Asbestos
Claimants

Charles S. Siegel (Argued)
Peter A. Kraus
Waters & Kraus
Dallas, TX 75204

Attorneys for Appellee
Unofficial Committee of Select
Asbestos Claimants; Waters &
Kraus Plaintiffs

William F. Taylor, Jr.
McCarter & English
Wilmington, DE 19899

Michael B. Pullano
McCarter & English
Philadelphia, PA 19103

Attorneys for Appellee
Kaeske-Reeves Claimants

Philip A. Harley
Paul, Hanley & Harley
Berkeley, CA 94710

Attorney for Appellees
Alice Edmiston and Barry
Edmiston

Constance J. McNeil
Lewis, D'Amato, Brisbois & Bisgaard
San Francisco, CA 94104

Attorney for Appellee
The Pep Boys -- Manny, Moe &
Jack

Barry R. Ostrager
Simpson, Thacher & Bartlett
New York, NY 10017

Attorney for Amicus-Appellants
Travelers Indemnity, Travelers
Casualty and Surety Company

Daniel J. Popeo
Paul D. Kamenar

Washington Legal Foundation
Washington, D.C. 20036

Bruck R. Zirinsky
John H. Bae
Edward A. Smith
Cadwalader, Wickersham & Taft
New York, New York 10038

Attorneys for the Washington Legal
Foundation As Amicus Curiae in

Support of Appellants
DaimlerChrysler Corporation, Ford
Motor Company, and General
Motors Corporation

OPINION OF THE COURT

SLOVITER, Circuit Judge:

Before us is an appeal of the District Court's decision
denying the motion to transfer tens of thousands of
asbestos-related tort claims and remanding these claims to
the state courts where they were originally filed, primarily
on the ground that the District Court had no subject matter
jurisdiction. The appellants, who moved for the transfer in
the District Court, argue that the District Court has
subject-matter jurisdiction over these claims because they
are "related to" the ongoing bankruptcy proceeding of
Federal-Mogul Global, a company which, through its
affiliates, manufactured products allegedly involved in the
asbestos-related torts. The central issue before us is
whether this court has jurisdiction to review the District
Court's decision to deny the transfer and to remand.

I.

BACKGROUND

A.

Procedural Posture

Tens of thousands of individuals (Friction Product
Plaintiffs or Plaintiffs) have brought personal injury and
wrongful death claims in state courts across the country
seeking damages for injuries allegedly caused by asbestos
used in so-called friction products, such as brake pads
(Friction Product Claims). The Friction Product Plaintiffs
allege that they were exposed to asbestos fibers through,
inter alia, the manufacture, installation, repair, and/or use
of friction products and that this exposure caused them or
their decedents to develop severe respiratory diseases, such
as asbestos-related mesothelioma, asbestos-related lung,
laryngeal or esophageal cancer, or asbestosis. They have
brought their tort claims against various manufacturers
and distributors of friction products (including Federal-
Mogul Global, Inc., which had acquired Apex and Wagner,
makers of friction products) as well as against companies
that made and sold products that incorporated friction
products (in particular, automobile manufacturers that
used brake pads containing asbestos).

On October 1, 2001, Federal-Mogul and its 156 affiliates
and subsidiaries (Debtors) filed Chapter 11 petitions in the
United States Bankruptcy Court for the District of
Delaware. At that time, Debtors were co-defendants in
many (though not all) of the thousands of Friction Product
Claims now before us. The filing of the Debtors' Chapter 11
petitions stayed the state court proceedings as to them.

Thereafter, the Friction Product Plaintiffs began severing
or dismissing their claims against Debtors. Other
defendants named in the Friction Product suits (Friction
Product Defendants or Defendants) began removing the
claims against them from state courts to the appropriate
federal district courts pursuant to 28 U.S.C. § 1452(a)

8

(bankruptcy removal), arguing that the Friction Product
Claims were "related to" the Debtors' bankruptcy
proceeding and thus subject to the bankruptcy jurisdiction
of the federal courts under 28 U.S.C. § 1334(b). The
primary theory in support of "related to" jurisdiction is that
the Friction Product Defendants would be able to seek
indemnification or contribution from Debtors because some
of the friction products used by Defendants were purchased
from Debtors.

In response to the removal of the claims, the Friction
Product Plaintiffs filed motions in the respective federal
district courts to remand the cases to state court on the
theory that removal was improper. Some of these district
courts granted these motions to remand.

In November 2001, the chief judge of this circuit,
pursuant to 28 U.S.C. § 292(b), assigned Judge Alfred M.
Wolin, a senior district judge in the District of New Jersey,
to sit by designation in the District of Delaware to manage
five asbestos-related Chapter 11 proceedings, including that
of Debtors. Three of the Friction Product Defendants
(DaimlerChrysler Corporation, Ford Motor Company, and
General Motors; hereinafter, the Big Three Automakers) had
previously filed a motion to transfer provisionally to the
District Court, pursuant to 28 U.S.C. § 157(b)(5),1 all of the
removed Friction Product Claims pending against them in
various district courts throughout the country. Thereafter,
Volkswagen of America, Inc., Volkswagen AG, Mercedes-
Benz USA, LLC, BMW North America, Inc., Volvo Cars
North America, Inc., Rolls Royce Bentley Motor Cars, Inc.,
and Nissan North American, Inc. (hereinafter, the
International Automakers) and Honeywell International,
Inc.,2 as well as other Friction Product Defendants, also

_________________________________________________________________

1. That section provides:

(5) The district court shall order that personal injury tort and
wrongful death claims shall be tried in the district court in which
the bankruptcy case is pending, or in the district court in the
district in which the claim arose, as determined by the district court
in which the bankruptcy case is pending.

28 U.S.C. § 157(b)(5).

2. Honeywell is a successor in interest to Bendix Corporation, which
manufactured friction products functionally identical to those

started removing and then transferring the Friction Product
Claims against them to the District Court in Delaware.

Before the District Court could rule on any motions,
some of the district courts to which the Friction Product
Claims had originally been removed remanded cases before
them back to the state courts. See, e.g., Dunn v.
DaimlerChrysler Corp., No. 3:01-CV-2870-X, 2002 WL
1359701 (N.D. Tex. Jan. 3, 2002); In re Asbestos Litig., 271
B.R. 118 (S.D.W.Va. Dec. 7, 2001); Clamon v. Kellogg-
Brown & Root, Inc., No. G-01-784 (S.D. Tex. Dec. 6, 2001).
Other district courts refused to transfer their Friction
Product Claims to the District Court. See, e.g. , In re
Asbestos Litig., No. 01-1790, 2002 U.S. Dist. LEXIS 3083
(D. Or. Feb. 1, 2002). And some of the plaintiffs in cases
that had been transferred to the District Court filed
emergency motions for remand because they were in
extremis, and sought to have the cases tried in state court
before they died. The most pressing matter before the
District Court was decision on the motions of the Friction
Product Defendants for immediate and ex parte provisional
transfer of all Friction Product Claims and their proposal
that the District Court thereafter render a plenary decision
on the actual transfer of the Friction Product Claims under
28 U.S.C. § 157(b)(5).

The primary reason offered by the Friction Product
Defendants for the transfer was to consolidate the Friction
Product Claims "for purposes of a threshold common issues
trial devoted to the core issue of whether brakes and other
automotive parts cause the diseases claimed." App. at 474.
Specifically, Defendants wanted the District Court to
conduct a "global Daubert hearing" in which the court
would perform its "gatekeeper" function as outlined in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
589 (1993) ("[U]nder the Rules [of Evidence] the trial judge
must ensure that any and all scientific testimony or
evidence admitted is not only relevant, but reliable."), and
_________________________________________________________________
manufactured by Federal-Mogul. Bendix would sometimes purchase
Federal-Mogul's products or components to sell under its own brand
name.

amplified in Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999). In particular, Defendants wanted the District
Court to determine whether the evidence that Defendants'
products harmed Plaintiffs is based on reliable scientific
methodology. In their memorandum in support of their
motion to transfer, the Big Three Automakers maintained
that there is "no reliable scientific evidence to support any
claim based on exposure to [the Friction P]roducts." App. at
664. Accordingly, the Friction Product Defendants argued
that the promise of the "global Daubert hearing" is to
"excise[ ] [the Friction Product Claims] from the American
judicial system in one fell swoop and [lift] a substantial
cloud . . . from over Federal Mogul." Br. of Big Three
Automakers at 2.

The District Court granted the provisional transfer
pursuant to § 157(b)3 in order to consider the
appropriateness of actual transfer as well as to examine its
subject matter jurisdiction and the appropriateness of
abstention and remand. In re Federal-Mogul Global, Inc.,
No. 01-10589 et al., 2001 U.S. Dist. LEXIS 23553 (D. Del.
Dec. 19, 2001) (granting Honeywell's provisional transfer
motion); App. at 598 (same with respect to Big Three
Automakers); App. at 608 (International Automakers); App.
at 624 (Harley-Davidson Motor Company Group, Inc.); App.
at 615 & 630 (other Defendants). Subsequently, the
Friction Product Defendants succeeded in obtaining
mandamus orders from two appellate courts prohibiting
district courts to which the Friction Product Claims had
originally been removed from deciding any issues in those
cases. In re Gen. Motors Corp., No. 02-1273 (7th Cir. Feb
15, 2002) (App. at 1017); In re DaimlerChrysler Corp., No.
_________________________________________________________________

3. Although § 157(b) does not explicitly allow for such provisional
transfers, they have been permitted by some courts. See, e.g., A.H.
Robins Co. v. Piccinin (In re A. H. Robins Co.), 788 F.2d 994, 1015-16
(4th Cir. 1986) (approving district court's transfer order interpreting that
order as "conditional" pending objections of the parties and requests for
abstention); In re Dow Corning Corp., No. 95-20512, 1995 WL 495978, at
*2 (Bankr. E. D. Mich. 1995) (granting provisional transfer pending
hearing to determine whether the transfer order should be made
permanent). The parties before us do not question the legitimacy of a
provisional transfer and therefore we do not address that issue.

02-10029 et al., 2002 U.S. App. LEXIS 8756 (5th Cir. Mar.
8, 2002). Those two courts reasoned that the District
Court's provisional transfer had taken away any
jurisdiction that those district courts may have had. Id.

District Court's Ruling

After hearing oral arguments on the pending motions to
transfer and remand, the District Court issued the following
order, which was followed shortly thereafter by an opinion:

ORDER 1) DENYING THE MOTIONS TO TRANSFER
THE "FRICTION PRODUCTS CLAIMS" AND 2)
REMANDING THE FRICTION PRODUCTS CLAIMS

This matter having been opened before the Court
upon the several motions of parties, denominated in
the prior Orders of the Court as the "Friction Products
Defendants," to transfer to this District into the above-
captioned proceedings the claims against the movants
previously denominated "Friction Products Claims";
and the Court having previously granted this motion
on a provisional basis and the Friction Products Claims
having already been provisionally transferred to this
Court subject to a plenary hearing on the motion to
transfer; and the Court having previously given notice
to the parties that it would consider arguments
directed to subject matter jurisdiction, abstention and
remand in ruling upon the movants' applications; and
the Court having reviewed the submissions of counsel
and heard oral argument; and for the reasons set forth
on the record at the hearing on those motions today, as
supplemented by a written Opinion to follow; and for
good cause shown

It is this 8th day of February 2002

ORDERED that the motions to transfer the Friction
Products Claims are denied, and it is further

ORDERED that this Court lacks subject matter
jurisdiction over the Friction Products Claims, and it is
further

ORDERED that the Friction Products Claims are
remanded to the state courts from which they were
removed pursuant to 28 U.S.C. § 1447, and it is
further

ORDERED that, in the alternative, the Friction
Products Claims are remanded to the state courts from
which they were removed pursuant to 28 U.S.C.
§ 1452.

In re Federal-Mogul Global, Inc., No. 01-10587, 2002 Bankr.
LEXIS 105, *4-5 (Bankr. D. Del. Feb. 8, 2002) (hereinafter,
Feb. 8 Order). The District Court's written opinion
supplementing the order was issued on February 15, 2002.
In re Federal-Mogul Global, Inc., No. 01-10578 et al., slip op.
(Bankr. D. Del. Feb. 15, 2002) (hereinafter, Feb. 15 Op.).

The District Court held that it lacked subject-matter
jurisdiction because the claims against the Friction Product
Defendants were not "related to" the Federal-Mogul
bankruptcy proceedings. The court found it unlikely that
"Congress . . . intended that the bankruptcy of a single
player [in a multi-player industry] would have automatic,
nation-wide impact in which every manufacturer and
distributor and all tens of thousands of injured parties are
concentrated in a single reorganization proceeding." Feb. 15
Op. at 16. Specifically, the District Court found that under
this court's influential decision in Pacor, Inc. v. Higgins (In
re Pacor), 743 F.2d 984 (3d Cir. 1984), "related-to
bankruptcy jurisdiction [does] not extend to a dispute
between non-debtors unless that dispute, by itself, creates
at least the logical possibility that the estate will be
affected." Id. at 17.

The District Court noted that Pacor made clear that there
is no "related to" jurisdiction over a personal injury claim
against a non-debtor "without the filing and adjudication of
a separate claim for indemnification" against the debtor. Id.
at 18. Further, the District Court observed that"cases since
Pacor have failed to endorse the proposition that any
contract of indemnification will support an extension of
related-to jurisdiction." Id. at 22 (emphasis in original).

Turning to the Friction Product Claims, the District Court
stated that:

[T]he movants have produced no evidence whatsoever
of even a bare agreement to indemnify running
between the debtors and the solvent co-defendants
. . . .

The Court sees no justification to take the situation
. . . outside of the rule of Pacor. A judgment against [the
Friction Product Defendants] will not bind the debtors.
No asset of the estate is threatened nor is any re-
ordering of creditors in the offing. It is true that
recovery by asbestos claimants against the movants
may give rise to claims, indeed very substantial claims,
against the debtors in the future. It is at that time, when
the movants appear as creditors of the estate and the
facts underlying the liability are adjudicated in the
context of the bankruptcy, that the Friction Products
Claims will affect the estate.

Id. at 22-23 (emphasis added).

The District Court noted that only Chrysler submitted
documents that could even plausibly support a claim based
on a written indemnification agreement, namely boiler-plate
purchase orders that refer to documents containing
indemnification language. The District Court held that the
"routine nature of this kind of arrangement and lack of
other connections between [Chrysler and Debtors] makes
this ["boiler-plate" language] too thin a thread with which to
pull Chrysler into the Federal-Mogul bankruptcy." Id. at 27.
Although the court found that Chrysler had a comparatively
stronger claim for indemnification than the other Friction
Product Defendants, it found that none of them had
genuine indemnification claims "related to" the bankruptcy
case. The court found that even if there were a judgment
against one of the Friction Product Defendants, Debtors
would not be bound by that decision and that any
indemnification claims against Debtors by the Friction
Product Defendants have not yet accrued. Id. at 23.

Alternatively, and apparently because there might be
some basis for Chrysler's indemnification claims, the
District Court announced that, even if it did have
jurisdiction, it would abstain from hearing the Friction
Product Claims pursuant to 28 U.S.C. § 1334(c)(1)

(bankruptcy abstention) in light of considerations of
fairness, comity, and the integrity of the bankruptcy
process. Feb. 15 Op. at 28 & 36.

Having found that it lacked jurisdiction (or, in the
alternative that abstention was appropriate), the District
Court remanded the Friction Product Claims directly to the
state courts from which they were removed pursuant to 28
U.S.C. § 1452(b). While the court acknowledged that it was
"rare for a District Court in one state to remand a matter
to the state courts of another state," Feb. 15 Op. at 37, the
District Court concluded that such action was permitted by
§ 1452 and justified by principles of efficiency and fairness.

The Appeal

The Friction Product Defendants appealed the District
Court's order. This court granted a temporary stay of the
order remanding the Friction Product Claims. App. at 53-
54. Four groups of Defendants have filed briefs in this
appeal: the Big Three Automakers, Honeywell, the
International Automakers, and the Official Committee of
Unsecured Creditors of Federal-Mogul Global.4 Additionally,
the Washington Legal Foundation and Traveler's Indemnity
Company each filed an amicus brief in support of
Defendants.

The Friction Product Defendants argue that the District
Court erred in (1) finding that it lacked "related to"
jurisdiction, (2) deciding to remand the claims directly to
the state courts from which they were removed, and (3)
determining, in the alternative, that it would abstain. In
particular, they argue that the District Court misread this
court's seminal decision in Pacor and mistakenly ignored
the persuasive authority of the Sixth Circuit's decision in
_________________________________________________________________

4. The Official Committee of Unsecured Creditors represents the holders
of approximately two and a half billion dollars of Federal-Mogul's
commercial, trade, and bond debt. Although the unsecured creditors do
not, in general, have any Friction Product Claims pending against them,
for simplicity's sake we include them among the Defendants.

Lindsey v. O'Brien (In re Dow Corning Corp.), 86 F.3d 482
(6th Cir. 1996). Further, they argue that remand to state
court was not authorized because only a court to which a
claim was removed has the statutory power to remand to
the state court from which that claim was removed. Thus,
they conclude that the District Court erred by remanding
the claims to state court, and also erred by abstaining with
respect to any remaining claims. Further, Defendants argue
that the District Court failed to adequately consider
whether to conduct a global Daubert hearing. Finally, some
Defendants argue that Pacor is flawed and is at odds with
this court's later decisions concerning "related to"
jurisdiction. Br. of Honeywell at 13-18.

Four groups of Friction Product Plaintiffs have filed
briefs: the Official Committee of Asbestos Claimants of
Federal-Mogul Global, the Ad Hoc Committee of Asbestos
Claimants, the Unofficial Committee of Asbestos Claimants,
and the Waters & Kraus Plaintiffs.5 The Friction Product
Plaintiffs argue, first, that this court lacks appellate
jurisdiction to review the decision of the District Court in
light of 28 U.S.C. § 1447(d), which provides that a remand
"to the State court from which [a case] was removed is not
reviewable on appeal or otherwise." § 1447(d). In the
alternative, they argue that the District Court was correct
in finding that it had no "related to" jurisdiction and in
deciding to remand the claims directly to the various state
courts from which they were removed. Also, in addition to
endorsing the District Court's alternative holding to abstain
pursuant to 28 U.S.C. § 1334(c)(1) (discretionary
abstention), Plaintiffs maintain that the District Court
should have abstained pursuant to 28 U.S.C. § 1334(c)(2)
(mandatory abstention). Further, some Plaintiffs argue that
Defendants' proposed "global Daubert hearing" is
inapplicable to the Friction Product Claims in light of the
"infinite variety of exposure histories and medical facts
presented by the tens of thousands of claimants . . . [and
_________________________________________________________________

5. The Waters & Kraus Plaintiffs have dismissed all Friction Product
Claims they had brought against Federal-Mogul. Otherwise, there are no
substantial differences among the various committees of asbestos
claimants.

f]ifty states' laws on causation and burden of proof." Br. of
Ad Hoc Committee at 2.

II.

JURISDICTION

Before we can reach the merits of the District Court's
decision, we must determine whether we have jurisdiction
to consider this appeal. The District Court denominated its
Order as "1) denying the motions to transfer the`friction
products claims' and 2) remanding the friction products
claims." Feb. 8 Order at *4. To make an assessment of our
jurisdiction we must first consider whether to construe the
decision of the District Court as a denial of a transfer or as
a remand order.

Because there are arguments to support construing the
order as one denying the requested transfer and equally
good arguments to construe the order as one remanding
the cases, we will follow the prudent course and consider in
turn our jurisdiction under each construction. Each
presents substantial obstacles to our exercise of appellate
jurisdiction. We will discuss the District Court's alternative
holding abstaining from hearing the Friction Product
Claims only if we need to reach that issue.

Denial of Transfer

1. Reviewability

It is a well-established rule in this circuit (and generally)
that " `orders transferring venue are not immediately
appealable.' " Sunbelt Corp. v. Noble, Denton & Assoc., 5
F.3d 28, 30 (3d Cir. 1993) (quoting Carteret Sav. Bank, FA
v. Shushan, 919 F.2d 225, 228 (3d Cir. 1990)); see also
Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d
1272, 1278 (3d Cir. 1991) ("It is well-settled that orders
granting or denying a change in venue are not proper
subjects for interlocutory appeals.") (citing Nascone v.

Spudnuts, Inc., 735 F.2d 763, 764 (3d Cir. 1984)); 15
Charles Alan Wright et al., Federal Practice & Procedure
§ 3855, at 472 (2d ed. 1986 & Supp. 2002) ("It is entirely
settled that an order granting or denying a motion to
transfer under 28 U.S.C.A. § 1404(a) is interlocutory and
not immediately appealable . . . ."). However, we, like other
courts, have held that " `[m]andamus is. . . the appropriate
mechanism for reviewing an allegedly improper transfer
order.' " In re United States, 273 F.3d 380, 385 (3d Cir.
2001) (alteration and ellipsis in original) (quoting Sunbelt, 5
F.3d at 30); see also Van Dusen v. Barrack, 376 U.S. 612,
615 n.3 (1964); In re Sealed Case, 141 F.3d 337, 340 (D.C.
Cir. 1998); Warrick v. Gen. Elec. (In re Warrick), 70 F.3d
736, 739 (2d Cir. 1995); National-Standard Co. v. Adamkus,
881 F.2d 352, 356 n.3 (7th Cir. 1989); Sunshine Beauty
Supplies, Inc. v. U.S. Dist. Ct., 872 F.2d 310, 311 (9th Cir.
1989); Hustler Magazine v. U.S. Dist. Ct., 790 F.2d 69, 70
(10th Cir. 1986).

Of course, review via mandamus necessarily is more
circumscribed than review by appeal. As we have stated,
"[M]andamus jurisdiction affords an appellate court less
opportunity to correct district court error in the case before
it and less opportunity to provide guidance for future cases.
Moreover, comity between the district and appellate courts
is best served by resort to mandamus only in limited
circumstances." Kelly v. Ford Motor Co. (In re Ford Motor
Co.), 110 F.3d 954, 964 (3d Cir. 1997).

In reviewing a transfer order by mandamus, we recently
observed, "While 28 U.S.C. § 1651(a) grants federal courts
the general power to issue writs, it is widely accepted that
mandamus is extraordinary relief that is rarely invoked."
United States, 273 F.3d at 385. In Sunbelt , we described
the standards for issuing mandamus with respect to a
district court's transfer order:

Our review of the district court's transfer order on a
petition for a writ of mandamus is governed by familiar
principles. A writ of mandamus is an extraordinary
remedy, the issuance of which is generally committed
to the sound discretion of the issuing court. Carteret,
919 F.2d at 232-33; In re School Asbestos Litig. , 977
F.2d [764,] 772 [(3d Cir. 1992)]. . . .

Generally, a writ will only issue if the district court
did not have the power to enter the order, and then
"only if the party seeking the writ meets its burden to
demonstrate that its right to the writ is clear and
indisputable." [Carteret, 919 F.2d] at 232. Thus, we
turn to whether or not the district court had the power
to transfer this action.

Sunbelt, 5 F.3d at 30.6

This court has on various occasions construed an appeal
as a petition for a writ of mandamus. See, e.g. , In re
Nwanze, 242 F.3d 521, 524 (3d Cir. 2001); Nascone, 735
F.2d at 773. Defendants request that we do so here, Reply
Br. of Big Three at 21,7 and we proceed to consider whether
_________________________________________________________________

6. The Supreme Court has stated that "only exceptional circumstances
amounting to a judicial `usurpation of power' will justify the invocation
of this extraordinary remedy." Will v. United States, 389 U.S. 90, 95
(1967) (quoting De Beers Consol. Mines, Ltd. v. United States, 325 U.S.
212, 217 (1945)). It has listed among the conditions for the issuance of
a writ of mandamus that "the party seeking . . . the writ have no other
adequate means to attain the relief he desires," Kerr v. U.S. Dist. Ct., 426
U.S. 394, 403 (1976) (citing Roche v. Evaporated Milk Ass'n, 319 U.S. 21,
26 (1943)), and that the right to the writ is " `clear and indisputable,' " id.
(quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953)
(quotation omitted)).

As one commentator has noted, "The circuit court articulations of what
constitutes a `clear and indisputable' right to the writ vary to some
degree, but virtually all suggest that some blatant or unconscionable
misstep by the district court is needed." Timothy P. Glynn, Discontent
and Indiscretion: Discretionary Review of Interlocutory Orders, 77 Notre
Dame L. Rev. 175, 199 (2001). Glynn distinguishes among courts that
require a usurpation of power by the district court, id. at 200 & n.94
(citing In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1295 (7th Cir.
1995); In re Pearson, 990 F.2d 653, 656 (1st Cir. 1993); In re Int'l
Precious Metals Corp., 917 F.2d 792, 793 (4th Cir. 1990)), those that
require "shocking abuse of discretion, exercise of power in excess of
jurisdiction, or other outrageous behavior," id. at 200 & n.95 (citing, inter
alia, In re Chambers Dev. Co., 148 F.3d 214, 223 (3d Cir. 1998); In re
Sealed Case, 141 F.3d at 339; Boughton v. Cotter Corp., 10 F.3d 746,
751 (10th Cir. 1993)), and the Ninth Circuit's less stringent standard, id.
at 200 & n.96 (citing Bauman v. U.S. Dist. Ct. , 557 F.2d 650, 654-55
(9th Cir. 1977)).

7. In their Emergency Motion for Stay Pending Appeal before this court,
the Big Three Automakers specifically asked this court to issue a writ of
mandamus. Emergency Motion for Stay Pending Appeal, 02-1426, at 6
(filed Feb. 11, 2002).

to issue a writ of mandamus in light of Defendants'
arguments that the District Court erred in denying their
transfer motion.

2. District Court's Rationale for Denial of Transfer

The District Court denied the Defendants' motion to
transfer after holding that it lacked subject-matter
jurisdiction over the Friction Product Claims because they
were not "related to" Federal-Mogul's bankruptcy
proceeding. That holding, in turn, was based on its
understanding of this court's decision in Pacor Inc. v.
Higgins (In re Pacor), 743 F.2d 984 (3d Cir. 1984), where we
interpreted the scope of the statutory "related to"
jurisdiction of bankruptcy courts.

In Pacor, John and Louise Higgins sued Pacor in
Pennsylvania state court for work-related injuries to John
Higgins caused by exposure to asbestos supplied by Pacor.
Pacor filed a third-party complaint impleading Johns-
Manville, the manufacturer of the asbestos. Thereafter,
Manville filed for Chapter 11 bankruptcy in the Southern
District of New York. Pacor filed a petition for removal in
the Bankruptcy Court for the Eastern District of
Pennsylvania seeking to remove the Higgins' case from state
court to federal bankruptcy court and simultaneously to
transfer it from that court to the New York district court
where it would be joined with the rest of the Johns-Manville
bankruptcy proceedings. The theory of Pacor's petition was
that the Higgins suit was "related to" the Manville
bankruptcy proceeding. The bankruptcy court denied the
petition and remanded the case. Pacor, 743 F.2d at 986-87.
We affirmed. Analyzing the "related to" provision, we
concluded:

[T]he primary action between Higgins and Pacor would
have no effect on the Manville bankruptcy estate, and
therefore is not "related to" [the Manville] bankruptcy
[proceeding]. At best, it is a mere precursor to the
potential third party claim for indemnification by Pacor
against Manville. Yet the outcome of the Higgins-Pacor
action would in no way bind Manville, in that it could
not determine any rights, liabilities, or course of action
of the debtor. Since Manville is not a party to the

Higgins-Pacor action, it could not be bound by res
judicata or collateral estoppel. Even if the Higgins-
Pacor dispute is resolved in favor of Higgins (thereby
keeping open the possibility of a third party claim),
Manville would still be able to relitigate any issue, or
adopt any position, in response to a subsequent claim
by Pacor. Thus, the bankruptcy estate could not be
affected in any way until the Pacor-Manville third party
action is actually brought and tried.

Id. at 995 (citations omitted).

The arguments made by Pacor were not dissimilar to
those made by Defendants here, but we rejected them,
saying:

Pacor stresses that the Higgins-Pacor claim would
affect the Manville bankruptcy estate, in that without a
judgment for plaintiff Higgins in that action, there
could never be a third party indemnification claim
against Manville. This argument does not alter our
conclusion. At best, one could say that a judgment
against the plaintiff on the primary claim would make
absolutely certain that the Manville estate could never
be adversely affected. This does not prove the converse,
however, that a judgment in favor of the plaintiff
Higgins necessarily does affect the estate. The fact
remains that any judgment received by the plaintiff
Higgins could not itself result in even a contingent
claim against Manville, since Pacor would still be
obligated to bring an entirely separate proceeding to
receive indemnification.

Id. (emphasis in original).

Thus, the District Court interpreted Pacor and its
progeny to hold that "related-to bankruptcy jurisdiction will
not extend to a dispute between non-debtors unless that
dispute, by itself, creates at least the logical possibility that
the estate will be affected." Feb. 15 Op. at 17.

Pacor has been favorably cited in dozens of decisions of
this court. As we have observed:

The test . . . articulated in Pacor has been enormously
influential. Pacor not only governs our analysis here,

but its cogent analytical framework has been relied
upon by our sister circuits more than any other case in
this area of the law. . . .

Even for those circuits that have not formally adopted
Pacor, [it] has provided an indispensable and frequently
cited frame of reference, a veritable beacon on the
uncharted and perilous waters of bankruptcy subject
matter jurisdiction. The references to Pacor in
Shepard's Citations are legion. When federal courts
must consider whether an issue is a related
proceeding, the starting point has universally been
Pacor.

Torkelsen v. Maggio (In re Guild & Gallery Plus, Inc.), 72
F.3d 1171, 1181 & n.5 (3d Cir. 1996).

Pacor clearly remains good law in this circuit.8 Under our
operating procedures, we cannot revisit Pacor unless we are
sitting en banc. Moreover, the Supreme Court has endorsed
the core of this court's opinion in Pacor, saying:

We agree with the views expressed by the Court of
Appeals for the Third Circuit in Pacor . . . that
"Congress intended to grant comprehensive jurisdiction
to the bankruptcy courts so that they might deal
efficiently and expeditiously with all matters connected
with the bankruptcy estate," and that the "related to"
language of § 1334(b) must be read to give district
courts (and bankruptcy courts under § 157(a))
jurisdiction over more than simply proceedings
involving the property of the debtor or the estate. We
also agree with that court's observation that a
bankruptcy court's "related to" jurisdiction cannot be
limitless.

Celotex Corp. v. Edwards, 514 U.S. 300, 308 (1995)
(citations omitted) (citing and quoting Pacor , 743 F.2d at
_________________________________________________________________

8. Honeywell argues that Pacor is unreasonable in various ways and that
Lindsey v. O'Brien (In re Dow Corning Corp.), 86 F.3d 482 (6th Cir. 1996),
articulates a better approach to related-to jurisdiction. Br. of Honeywell
at 13-18. Honeywell's arguments are not ultimately persuasive and, as
we note in the text, we are not in a position to reject Pacor without en
banc review. 3d Cir. Internal Operating P. 9.1.

994) (emphasis added). The Supreme Court noted the
general acceptance of Pacor, commenting that all of the
courts of appeal have adopted the Pacor test with little or
no variation with the exception of the Second and Seventh
Circuits, which have adopted slightly different tests. Id. at
308-309 n.6.

Notwithstanding the widespread acceptance of Pacor,
Defendants argue that the Friction Product Claims are
"related to" the Federal-Mogul bankruptcy proceeding
because the various claims against them could lead to
substantial indemnification or contribution claims against
Federal-Mogul, which would in turn significantly affect the
administration of the bankruptcy estate and the
development of an appropriate plan of reorganization. They
focus on our articulation of the Pacor test for "related to"
jurisdiction as "whether the outcome of that proceeding
could conceivably have any effect on the estate being
administered in bankruptcy." Pacor, 743 F.2d at 994
(emphasis in original). Defendants emphasize that in Pacor
we stated that a civil "proceeding need not necessarily be
against the debtor" to give rise to "related to" jurisdiction;
it is enough that the outcome of such a proceeding "could
alter the debtor's rights, liabilities, options, or freedom of
action." Id. They argue that the outcome of the Friction
Product Claims could conceivably have an effect on
Debtors' estate, because it is "conceivable" that if the
Friction Product Plaintiffs succeed in their claims against
them, the Friction Product Defendants would seek
indemnification and/or contribution from Federal-Mogul.

Their reading of the word "conceivable" ignores the
precise holding of Pacor where, despite the seemingly broad
language of the opinion, we found no "related to"
jurisdiction for the Higgins lawsuit against Pacor because
the outcome of that lawsuit could not result "in even a
contingent claim" against the debtor (Manville); rather, "an
entirely separate proceeding to receive indemnification"
would have been required. Id. at 995. The test articulated
in Pacor for whether a lawsuit could "conceivably" have an
effect on the bankruptcy proceeding inquires whether the
allegedly related lawsuit would affect the bankruptcy
proceeding without the intervention of yet another lawsuit.

Therefore, because any indemnification claims that the
Friction Product Defendants might have against Debtors
have not yet accrued and would require another lawsuit
before they could have an impact on Federal-Mogul's
bankruptcy proceeding, we cannot hold that the District
Court's ruling that it lacked subject-matter jurisdiction
because the Friction Product Claims were not "related to"
the Federal-Mogul bankruptcy proceeding was a "clear error
. . . approach[ing] the magnitude of an unauthorized
exercise of judicial power." Lusardi v. Lechner, 855 F.2d
1062, 1069 (3d Cir. 1988) (citing Will v. Calvert Fire Ins.
Co., 437 U.S. 655, 661 (1978)). We therefore conclude that
the District Court's decision does not justify issuance of a
writ of mandamus.

The arguments by the Friction Product Defendants for
the existence of "related to" bankruptcy jurisdiction draw
heavily on the decision of the Sixth Circuit in Dow Corning,
86 F.3d 482 (6th Cir. 1996). Dow Corning, the largest
producer of silicone-gel breast implants, also sold silicone
materials to other manufacturers of such implants. It and
other manufacturers and suppliers of silicone implants
were sued by thousands of recipients of the implants for
personal injuries related to the silicone implants. Dow
Corning filed for Chapter 11 bankruptcy. The bankruptcy
filing automatically stayed all of the silicone implant cases
against it, but not the claims against Dow Chemical and
Corning, Inc. (its co-defendants as well as its shareholders)
or the claims against the other three co-defendants. As in
this case, the various co-defendants removed many of these
personal injury claims from state court to federal court.
Dow Corning then moved to transfer the removed cases to
the district court that had jurisdiction over its Chapter 11
proceedings, and the co-defendants joined in its motions,
relying on the "related to" provision of the Bankruptcy
Code. The district court held that it did not have "related
to" jurisdiction over the claims against the co-defendants
but the court of appeals, citing Pacor, reversed.

After noting that Dow Corning's co-defendants may have
thousands of claims of indemnification and contribution
against Dow Corning and that Dow Corning may have
similar claims against them, the court concluded that the

district court had "related to" jurisdiction over the silicone
implant claims of Dow Corning's non-shareholder co-
defendants based on the following reasoning:

We find that it is not necessary for the appellees first
to prevail on their claims against the nondebtor
defendants, and for those companies to establish joint
and several liability on Dow Corning's part, before the
civil actions pending against the nondebtors may be
viewed as conceivably impacting Dow Corning's
bankruptcy proceedings. The claims currently pending
against the nondebtors give rise to contingent claims
against Dow Corning which unquestionably could ripen
into fixed claims. The potential for Dow Corning's being
held liable to the nondebtors in claims for contribution
and indemnification, or vice versa, suffices to establish
a conceivable impact on the estate in bankruptcy.
Claims for indemnification and contribution, whether
asserted against or by Dow Corning, obviously would
affect the size of the estate and the length of time the
bankruptcy proceedings will be pending, as well as
Dow Corning's ability to resolve its liabilities and
proceed with reorganization.

Dow Corning, 86 F.3d at 494 (emphasis added).

The court concluded:

Cognizant of the fact that "related to" jurisdiction
cannot be limitless and concerned about granting
benefits of the automatic stay in bankruptcy to solvent
codefendants, we nevertheless believe the possibility of
contribution or indemnification liability in this case is
far from attenuated. We conclude that Section 1334(b)
jurisdiction exists over the actions pending against
[Dow Corning's co-defendants].

Id.

The Dow Corning court distinguished Pacor as follows:

In addition, we believe there is a qualitative difference
between the single suit involved in Pacor and the
overwhelming number of cases asserted against Dow
Corning and the nondebtor defendants in this case. A
single possible claim for indemnification or

contribution simply does not represent the same kind
of threat to a debtor's reorganization plan as that
posed by the thousands of potential indemnification
claims at issue here.

Id.

The Friction Product Defendants extrapolate from Dow
Corning a rule that "related to" jurisdiction exists over
claims against non-debtors when these non-debtors have
potential contribution and indemnification claims. However,
they cannot persuasively argue that Dow Corning rather
than Pacor should have provided the rule of law the District
Court should have followed.

The District Court stated that it was:

unconvinced by the Dow Corning panel's main point of
distinction between that case and Pacor. The Sixth
Circuit reasoned that Pacor contained only one claim,
whereas in Dow Corning many thousands of plaintiffs
were suing the non-debtors. This Court regards with
misgiving the proposition that mere numbers of claims
should prevail over articulable principles when it
comes to defining federal subject matter jurisdiction.

Feb. 15 Op. at 15-16.

The District Court referred only briefly to the Fifth
Circuit's decision in Arnold v. Garlock, Inc. , 278 F.3d 426,
reh'g denied, 288 F.3d 234 (5th Cir. 2002), which presents
issues like those before us. Like the Friction Product
Defendants here, Garlock, a co-defendant of Federal-Mogul
in over eighty asbestos-related tort cases, removed the tort
claims against it and moved for transfer to the Federal-
Mogul bankruptcy proceeding. Garlock made the same
arguments that Defendants make before us, and relied on
Dow Corning to support "related to" jurisdiction. The Fifth
Circuit distinguished Dow Corning saying:

In In re Dow Corning, the Sixth Circuit reversed and
ordered the United States District Court for the
Eastern District of Michigan to transfer under
§ 157(b)(5) a relatively small number of non-debtor co-
defendants who had asserted claims for contribution,
or announced the intent of doing so, against the debtor

manufacturer of silicone breast implants. In re Dow
Corning, 86 F.3d at 498. In that case, each of the co-
defendants was closely involved in using the same
material, originating with the debtor, to make the
same, singular product, sold to the same market and
incurring substantially similar injuries. This
circumstance created a unity of identity between the
debtor and the co-defendants not present here, where
the co-defendants variously use asbestos for brake
friction products, insulation, gaskets, and other uses.

Therefore, while we do not disagree that certain mass
tort claims in some circumstances might be
consolidated with bankruptcy proceedings in a single
district in accordance with § 157(b)(5), the relationship
of the co-defendants in . . . In re Dow Corning is
distinguishable from Garlock's asserted relationship,
through a claim for contribution, to the debtor here.

Id. at 440. The Fifth Circuit's analysis in Garlock of the
"related to" provision of the Bankruptcy Code is consistent
with the result on the same issue reached by the District
Court in this case.

We, however, remain a step away from reaching the
merits of whether the District Court has "related to"
jurisdiction. Instead, because our appellate jurisdiction is
at issue, we review the District Court's denial of
Defendants' transfer motion in the context of deciding
whether to grant a writ of mandamus. We have recently
stated that a writ of mandamus may issue only if "the
district court committed a `clear error of law' at least
approach[ing] the magnitude of an unauthorized exercise of
judicial power, or a failure to use that power when there is
a duty to do so," Trans Penn Wax Corp. v. McCandless, 50
F.3d 217, 227 (3d Cir. 1995) (alteration in original) (quoting
Richman Bros. Records, Inc. v. U.S. Sprint Communications
Co., 953 F.2d 1431, 1448 (3d Cir. 1991) (quotation
omitted)), and only when "the party seeking [mandamus]
demonstrates a clear and indisputable right to [it]." Id.
(citing Carteret Sav. Bank, 919 F.2d at 232).

The Friction Product Defendants have not met this
rigorous standard for the issuance of the extraordinary writ

of mandamus as to the District Court's denial of the motion
to transfer. See, e.g., In re United States, 273 F.3d at 385;
Solomon v. Cont'l Am. Life Ins. Co., 472 F.2d 1043 (3d Cir.
1973) (denying petition for mandamus regarding a transfer
order). See also Dalton v. United States (In re Dalton), 733
F.2d 710, 716-18 (10th Cir. 1984) (same in the bankruptcy
context); In re McDonnell-Douglas Corp., 647 F.2d 515, 517
(5th Cir. 1981) (same); Toro Co. v. Alsop, 565 F.2d 998 (8th
Cir. 1977) (denial of mandamus petition regarding transfer
in anti-trust context); 16 Charles Alan Wright et al., Federal
Practice & Procedure § 3935.4, at 619-26 (2d ed. 1996)
(discussing use of mandamus applied to transfer orders).
We will deny the request to issue a writ of mandamus to
compel the District Court to transfer the Friction Product
Claims under § 1334(b).

Remand Order

1. Appellate Jurisdiction

We next consider whether we have jurisdiction to review
the decision of the District Court if we construe that
decision as a remand order.

The Friction Product Defendants removed the Friction
Product Claims to various federal courts pursuant to 28
U.S.C. § 1452 (bankruptcy removal). That section provides:

(a) A party may remove any claim or cause of action
in a civil action . . . to the district court for the district
where such civil action is pending, if such district
court has jurisdiction of such claim or cause of action
under section 1334 [the general jurisdictional
provisions of the bankruptcy code] of this title.

(b) The court to which such claim or cause of action
is removed may remand such claim or cause of action
on any equitable ground. An order entered under this
subsection remanding a claim or cause of action, or a
decision to not remand, is not reviewable by appeal or
otherwise by the court of appeals under section 158(d),

1291, or 1292 of this title or by the Supreme Court of
the United States under section 1254 of this title.

28 U.S.C. § 1452 (emphasis added).

The comparable provisions applicable to non-bankruptcy
cases are in 28 U.S.C. §§ 1441 and 1447. Section 1441(a)
provides:

(a) Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
which the district courts of the United States have
original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United
States for the district and division embracing the place
where such action is pending.

Sections 1447(c) and (d) provide:

(c) . . . If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction,
the case shall be remanded. . . .

(d) An order remanding a case to the State court from
which it was removed is not reviewable on appeal or
otherwise, [except for certain civil rights cases].

28 U.S.C. § 1447 (emphasis added).

At one time, various courts, including this one, held that
judicial review of the remand of a claim removed pursuant
to the Bankruptcy Code was governed exclusively by
§ 1452(b), the provision governing remand of removed
claims "related to" bankruptcy, not by § 1447(d), the
general procedural provision governing remand after
removal. See Pacor, 743 F.2d at 990-92 (discussing § 1478,
the predecessor of § 1452). Subsequently, the Supreme
Court rejected this view, stating:

There is no express indication in § 1452 that Congress
intended that statute to be the exclusive provision
governing removals and remands in bankruptcy. Nor is
there any reason to infer from § 1447(d) that Congress
intended to exclude bankruptcy cases from its
coverage. The fact that § 1452 contains its own
provision governing certain types of remands in
bankruptcy . . . does not change our conclusion. There

is no reason §§ 1447(d) and 1452 cannot comfortably
coexist in the bankruptcy context. We must, therefore,
give effect to both.

Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 129
(1995).9 Giving effect to both§ 1447(d) and § 1452(b) and
applying them to a remand order involving claims allegedly
"related to" a bankruptcy proceeding, it is apparent that
such a remand is expressly "not reviewable by appeal or
otherwise." 28 U.S.C. § 1452(b). See also 28 U.S.C.
§ 1447(d) (remand orders "not reviewable on appeal or
otherwise.").

Defendants argue that this court has jurisdiction to
review the remand order because neither § 1447(c) nor
§ 1452(a) authorized the District Court to remand the
Friction Product Claims to the state courts from which they
were removed. Specifically, the Friction Product Defendants
argue that the remand order was not authorized because
§ 1447(c) only authorizes remand by the district court to
which the claims were removed and only authorizes remand
to a court from which the removed claims most recently
came. Relatedly, they note that the language of§ 1452(b) is
even more specific as it only authorizes remand by"[t]he
court to which such claim or cause of action is removed."
Therefore, they contend that once the District Court
decided the jurisdictional issue against them, it only had
the options of (i) vacating the provisional transfer order, (ii)
denying the final transfer order, or (iii) transferring the
claims back to the district courts from which they were
provisionally transferred. Reply Br. of Big Three
Automakers at 18.10 In any event, as they view the
situation, the District Court had no authority to remand
the claims directly to the state courts.11
________________________________________________________________

9. While Things Remembered overruled Pacor on this precise issue, it did
not disturb the other holdings of Pacor. See, e.g., Halper v. Halper, 164
F.3d 830, 837 n.8 (3d Cir. 1999).
10. They assume that under any of these options, the District Court's
decision would have been subject to appellate review. As we discussed in
the previous section, that would not necessarily be the case.
11. It is unlikely that if the District Court had returned the cases to the
district courts from which they came, under the law of the case doctrine,
those district courts would have been free to reject the ruling of the
District Court on the "related to" jurisdiction issue, but we need not
decide that issue.

Defendants' argument that we are not precluded from
reviewing the cross-jurisdictional remands because they
were unauthorized by statute stems in part from the
Supreme Court's holding in Thermtron Products, Inc. v.
Hermansdorfer, 423 U.S. 336, 345-46 (1976), that only
remand orders based on grounds specified in § 1447(c) are
immune from review under § 1447(d). In Thermtron, the
remand was ordered solely on the ground of the district
court's heavy docket. The Court's subsequent opinion in
Things Remembered clarified the scope of the prohibition of
review of remand orders imposed by § 1447(d). The Court
held appellate review was properly denied of an order
remanding a case which had been untimely removed. 516
U.S. at 128. As Justice Thomas stated for the Court,"As
long as a district court's remand is based on a timely raised
defect in removal procedure or on lack of subject-matter
jurisdiction -- the grounds for remand recognized by
§ 1447(c) -- a court of appeals lacks jurisdiction to
entertain an appeal of the remand order under § 1447(d)."
Id. at 127-28. As the basis for the District Court's remand
in this case was lack of subject matter jurisdiction (the
absence of "related to" jurisdiction), appeal is similarly
barred.

Moreover, Defendants' premise that the District Court
lacked authority to remand a case improvidently removed
to a jurisdiction other than the one from which it came is
belied by two decisions of this court. In Bloom v. Barry, 755
F.2d 356 (3d Cir. 1985), a breach of warranty case
commenced in a Florida state court was removed to the
District Court for the Southern District of Florida and then
transferred to the District Court for the District of New
Jersey. The latter court found that it lacked subject-matter
jurisdiction and remanded the case to a New Jersey state
court, a venue in which the case had never been. We
granted a writ of mandamus, concluding that while the New
Jersey district court was right to remand the case, it was
wrong to remand it to the New Jersey state court. We
therefore vacated the district court's order and directed it to
remand the case to the Florida state court pursuant to
§ 1447(c). Id. at 358. In explaining our decision directing
remand to the Florida state court from which it had been
removed rather than to the United States District Court in

Florida from which it had come, we stated, "[f]ollowing the
change of venue [the District Court for] the District of New
Jersey had the same authority with respect to disposition of
the case as had the District Court for the Southern District
of Florida." Id. We held that, just as the district court in
Florida could have remanded the case to Florida state court
if it found any jurisdictional defects, after transfer so too
could the district court in New Jersey. Id. Bloom's holding
that the court to which a case has been transferred stands
in the shoes of the court from which the case was
transferred, at least with respect to remand pursuant to
§ 1447, is relevant here. See also AlliedSignal Recovery
Trust v. Allied Signal Inc., Nos. 01-1111, 01-1355, 01-1399
(3d Cir. July 31, 2002).

Similarly, in Abels v. State Farm Fire & Cas. Co., 770
F.2d 26 (3d Cir. 1985), a tort action commenced in
California state court was removed to the United States
District Court for the Central District of California and then
transferred pursuant 28 U.S.C. § 1404 to the United States
District Court for the Western District of Pennsylvania
where the relevant documents and many witnesses were
located. The district court in Pennsylvania held that the
plaintiff 's claims were time-barred and it dismissed the
action. On appeal, we vacated the dismissal because we
found that there was no diversity of citizenship and
therefore the federal courts lacked subject-matter
jurisdiction. Id. at 31-33. Although we considered
"remanding [the case] directly to the California state court,
or routing [the case] through the federal district court in
Los Angeles," id. at 33 n.13, we decided to remand the case
to the district court in Pennsylvania with instructions that
it remand the case to the California state court, not to the
California district court that had transferred the case to the
Pennsylvania district court. Thus, once again we authorized
a cross-jurisdictional remand. In sum, the relevant
precedent from this court supports the District Court's
cross-jurisdictional remand order.

The case before us is in some ways similar to the recent
decision of Republic of Venezuela v. Philip Morris Inc., 287
F.3d 192 (D.C. Cir. 2002), in which foreign countries
brought various actions in a Florida state court to recover

32

damages from certain tobacco companies. The cases were
removed to federal district court in Florida and then
transferred to the federal district court in the District of
Columbia. That court held that it lacked subject-matter
jurisdiction under § 1447, and remanded four of the cases
to the Florida state court. The tobacco companies appealed
the remand order and petitioned for a writ of mandamus to
prevent the district court from remanding the remaining
two cases to the Florida state court. The Court of Appeals
for the District of Columbia held that, under § 1447, it
lacked jurisdiction to review the district court's remand
order. Id. at 196. That holding is consistent with the statute
and accords with our view of the appellate jurisdiction
issue here. Accordingly, we hold that pursuant to§ 1447(d),
we do not have jurisdiction over the appeal of the District
Court's order remanding the Friction Product Claims to the
various state courts.

2. Mandamus

The Friction Product Defendants argue, as they did with
respect to the denial of their motion to transfer, that we
sHould construe their appeal as a petition for mandamus.
They recognize that § 1447(d) states that"[a]n order
remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise ." 28
U.S.C. § 1447(d) (emphasis added). We construed that
language in Feidt v. Owens Corning Fiberglas Corp., 153
F.3d 124 (3d Cir. 1998), where we held that "section
1447(d) prohibits review of remand orders `whether
erroneous or not and whether review is sought by appeal or
by extraordinary writ.' " Id. at 126 (quoting Thermtron, 423
U.S. at 343). See also Black & Decker (U.S.), Inc. v. Brown,
817 F.2d 13, 14 (3d Cir. 1987) ("inclusion of the phrase `or
otherwise' [in § 1447(d)] precludes review of a remand order
in a proceeding like the instant one that is originated by a
petition for an extraordinary writ") (citing Gravitt v.
Southwestern Bell Tel. Co., 430 U.S. 723 (1977)). Accord
New v. Sports & Recreation, Inc., 114 F.3d 1092, 1095-96
(11th Cir. 1997) (finding no jurisdiction in light of § 1447(d)
to consider appeal or petition for mandamus with respect to
remand order); Flores v. Long, 110 F.3d 730, 733 (10th Cir.
1997) (same); Gonzalez-Garcia v. Williamson Dickie Mfg. Co.,

99 F.3d 490, 492 (1st Cir. 1996) (per curiam) (holding that
§ 1447(d) precludes mandamus review); In re Bus. Men's
Assurance Co. of Am., 992 F.2d 181, 182-83 (8th Cir. 1993)
(per curiam) (same).

However, it is not as obvious that § 1452(b) prohibits
review by mandamus. The language of that section provides
that "[a]n order entered under this subsection remanding a
claim or cause of action . . . is not reviewable by appeal or
otherwise by the court of appeals under section 158(d),
1291, or 1292 of this title." 28 U.S.C. § 1452(b) (emphasis
added).

On the one hand, the Friction Product Plaintiffs plausibly
argue that the "or otherwise" language must refer to
mandamus review. To read § 1452(b) as allowing for
mandamus review renders the "or otherwise" language
meaningless, in violation of the canon against surplusage.
On the other hand, as the Friction Product Defendants
argue, the statute enumerates the statutory sections that
cannot be used to review remands and fails to mention 28
U.S.C. § 1651(a) (the All Writs Act). They construe this
omission as permitting writs of mandamus. This is a
plausible application of the expressio unius est exclusio
alterius (inclusion of one thing indicates exclusion of the
other) canon of statutory interpretation.

In discussing whether remand decisions are subject to
mandamus review, the Seventh Circuit, in In re U.S. Brass
Corp., 110 F.3d 1261 (7th Cir. 1997), held that "section
1452(b) bars review by appeal or otherwise, which would
seem to take in mandamus, which anyway is available only
when the applicant's right to it is clear." Id. at 1266
(emphasis in original) (citations omitted).

The legislative history is somewhat informative as to the
proper interpretation of § 1452(b). The sentence at issue
first appeared in the Bankruptcy Amendments and Federal
Judgeship Act of 1984, Pub. L. No. 98-353, § 103, 98 Stat.
333, 335 (1984) (amended 1990) as follows: "Any order
entered under this subsection remanding a claim or cause
of action . . . is not reviewable by appeal or otherwise." Six
years later, as part of the Judicial Improvements Act of
1990, Pub. L. No. 101-650, § 309, 104 Stat. 5089, 5113
(1990), § 1452 was modified to its current form.

On behalf of the Courts Subcommittee of the Senate
Judiciary Committee, Senator Charles Grassley, the
ranking member of the subcommittee, read into the record
its section-by-section analysis of the act. The relevant
portions of its analysis read as follows:

[The purpose of these changes is] to clarify that, with
respect to certain determinations in bankruptcy cases,
. . . appeals from the district courts to the courts of
appeals [are forbidden but appeals are] not [forbidden]
from bankruptcy courts to the district courts.

The statutes [as written before the changes] provide
that bankruptcy judges' orders deciding certain
motions (motions to abstain in favor of, or remand to,
state courts) are unreviewable "by appeal or otherwise."
Because bankruptcy judges may enter trial orders only
if there is appellate review in an Article III court, one
result of this limitation is that bankruptcy judges
cannot make final judgments in such cases even when
they clearly involve "core" proceedings.

[The changes] would authorize bankruptcy judges to
enter binding orders in connection with abstention
determinations under Title 11 or Title 28 and remand
determinations under Title 28, subject to review in the
district court. The statutory language under each of
these sections now provides that the decision of the
bankruptcy court (to abstain or remand) "is not
reviewable by appeal or otherwise." The proposed
amendment would modify these three sections to
provide that the decision of the bankruptcy court is not
reviewable "by the court of appeals . . . or by the
Supreme Court of the United States . . ." Such
determinations would therefore be reviewable by the
district court.

Speeding the disposition of these types of motions
will better serve the purpose of the limitation on
appeals from the district courts to the courts of
appeals.

136 Cong. Rec. 36,290 (1990).

It thus appears that these 1990 changes were intended to
make explicit that a district court, but not the Supreme

35

Court or a court of appeals, could review a bankruptcy
court's decision to remand and that decisions by a district
court to remand were not reviewable. The broad scope of
the original wording of the statute suggests that Congress
did not intend to allow for mandamus review of remand
decisions pursuant to § 1452(b). As is evident by the last
paragraph of the quotation from Senator Grassley's
remarks, Congress was interested in "speeding up" the
effects of a district or bankruptcy court's decision to
remand by precluding appellate review of such orders.

Both the statutory language itself and the intent of
Congress as evidenced by the legislative history lead us to
concur with the conclusion in U.S. Brass Corp. , 110 F.3d at
1266, that § 1452(b), particularly when read together with
§ 1447(d), bars both appeal and mandamus review of orders
remanding to state courts12 pursuant to § 1452(b) and/or
§ 1447(c).13 It follows that we must deny the requested
petition for mandamus as to the District Court's order
remanding to the state courts.14
_________________________________________________________________

12. In AlliedSignal Recovery Trust v. Allied Signal Inc., Nos. 01-1111, 01-
1355, 01-1139 (3d Cir. July 31, 2002), this court, following Bloom,
granted a writ of mandamus to vacate a district court order "remanding"
a case to a Delaware state court where it had never been. In Bloom, we
stated that " `[r]emand' means `send back.' It does not mean `send
elsewhere.' " Bloom, 755 F.2d at 357. We note that in contrast the
District Court in this case remanded to state courts from which the
various cases had been removed.

13. Even if we did have jurisdiction to consider a petition for a writ of
mandamus, we would not issue such a writ for reasons similar to those
we previously discussed in considering whether to issue a writ of
mandamus construing the decision of the District Court as a denial of
transfer.

14. In light of our decision that we have no jurisdiction to review the
District Court's order denying transfer and remanding, we need not
consider its alternate order abstaining. Moreover, a straightforward
reading of 28 U.S.C. § 1334(d) supports the view that we do not have
appellate jurisdiction to review a district court's decision to abstain
pursuant to § 1334(c)(1) (discretionary abstention). See Things
Remembered, 516 U.S. at 131 n.1 (1995) (Ginsburg, J., concurring)
("Section 1334(c)(2) [now § 1334(d)] renders unreviewable district court
decisions `to abstain or not to abstain' from adjudicating state-law claims
merely `related to' a bankruptcy case, i.e., claims that do not
independently qualify for federal-court jurisdiction.").

Coda

We are neither unaware of nor unsympathetic to the
argument of the Friction Product Defendants that the crisis
created by the current asbestos litigation would be
ameliorated were there a single proceeding that determined
whether "the subset of asbestos claims based on alleged
exposure to automotive friction products satisfies the
threshold standard of scientific validity established in
Daubert v. Merrell Dow Pharmaceuticals., Ins., 509 U.S. 579
(1993)." Reply Br. of Big Three Automakers at 2. The
arguments of appellants are based on their optimistic view
that a Daubert hearing would lead to the rejection of the
causation claims of all Plaintiffs. However, the evidence
creates an issue that could well go either way as to whether
Plaintiffs satisfy the Daubert gatekeeping standard. But this
case is not in a posture to face the Daubert issue, as we are
halted at the pass by our conclusion that we have no
jurisdiction over the decision of the District Court denying
the transfer and remanding the cases to the state courts
from which they came.

Throughout Defendants' briefs and in their oral
arguments they repeatedly contended that we are faced
with the question "whether the American judicial system is
capable of dealing with the recent explosion of automotive
`friction product' asbestos claims in a fair and rational
manner." Br. of Big Three Automakers at 4. This is not
dissimilar to the arguments made by the parties who
sought approval of a settlement class of asbestos victims.
The effort was rejected both by this court in Georgine v.
Amchem Products, Inc., 83 F.3d 610 (3d Cir. 1996), where
we stated that "against the need for effective resolution of
the asbestos crisis, we must balance the integrity of the
judicial system," id. at 617, and by the Supreme Court,
which affirmed that decision. Amchem Prods., Inc. v.
Windsor, 521 U.S. 591 (1997), aff 'g sub nom. Georgine, 83
F.3d 610. Just as both courts declined to permit an end
run around the requirements for class actions imposed by
Federal Rule of Civil Procedure 23, so also are we unwilling
to disregard the statutory impediments to our review of

orders of the district courts transferring and remanding
cases. Arguably, a procedure authorizing the aggregation of
state court cases, such as the Friction Product Claims, into
a nationwide class action would provide a mechanism for a
Daubert hearing like the one Defendants seek, but such
proposals, frequently made, have not passed both houses of
Congress.

As Justice Ginsburg stated in Amchem, "The argument is
sensibly made that a nationwide administrative claims
processing regime would provide the most secure, fair, and
efficient means of compensating victims of asbestos
exposure. Congress, however, has not adopted such a
solution." Id. at 628-29.

III.

CONCLUSION

For the reasons described above, this court does not have
jurisdiction to review the decisions of the District Court
denying the Friction Product Defendants' transfer motions
and remanding the Friction Product Claims to the state
courts from which they were originally removed. Further,
insofar as we can consider Defendants' appeal construing it
as a petition for a writ of mandamus, that petition is
denied.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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