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CARLSBAD TECHNOLOGY, INC. v. HIF BIO, INC. (No. 07-1437)
508 F. 3d 659, reversed and remanded.
Syllabus

Opinion
[Thomas]
Concurrence
[Stevens]
Concurrence
[Scalia]
Concurrence
[Breyer]
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556 U. S. ____ (2009)

SUPREME COURT OF THE UNITED STATES

CARLSBAD TECHNOLOGY, INC., PETITIONER v. HIF
BIO, INC., et al.

on writ of certiorari to the united states court ofappeals for the federal circuit


[May 4, 2009]

    Justice Breyer, with whom Justice Souter joins, concurring.

    I join the Court’s opinion. I write separately to note an anomaly about the way 28 U. S. C. §1447 works. In this case, we consider a District Court’s decision not to retain on its docket a case that once contained federal law issues but now contains only state law issues. All agree that the law grants the District Court broad discretion to determine whether it should keep such cases on its docket, that a decision to do so (or not to do so) rarely involves major legal questions, and that (even if wrong) a district court decision of this kind will not often have major adverse consequences. We now hold that §1447 permits appellate courts to review a district court decision of this kind, even if only for abuse of discretion.

    Contrast today’s decision with our decision two Terms ago in Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224 (2007) . In that case, we considered a District Court’s decision to remand a case in which a Canadian province-owned power company had sought removal—a matter that the Foreign Sovereign Immunities Act of 1976 specifically authorizes federal judges (in certain instances) to decide. See §§1441(d); 1603(a). The case presented a difficult legal question involving the commercial activities of a foreign sovereign; and the District Court’s decision (if wrong) had potentially serious adverse consequences, namely preventing a sovereign power from obtaining the federal trial to which the law (in its view) entitled it. We nonetheless held that §1447 forbids appellate courts from reviewing a district court decision of this kind. Id., at 238–239.

    Thus, we have held that §1447 permits review of a district court decision in an instance where that decision is unlikely to be wrong and where a wrong decision is unlikely to work serious harm. And we have held that §1447 forbids review of a district court decision in an instance where that decision may well be wrong and where a wrong decision could work considerable harm. Unless the circumstances I describe are unusual, something is wrong. And the fact that we have read other exceptions in the statute’s absolute-sounding language suggests that such circumstances are not all that unusual. See Osborn v. Haley, 549 U. S. 225, 240–244 (2007) ; Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 350–352 (1976) .

    Consequently, while joining the majority, I suggest that experts in this area of the law reexamine the matter with an eye toward determining whether statutory revision is appropriate.