author: Mr. Justice White Mr. Justice Rehnquist,

text:
    THERMTRON PRODUCTS, INC., et al. v. HERMANSDORFER, U. S. DISTRICT JUDGE
    No. 74-206.
    Argued October 7, 1975
    Decided January 20, 1976

      White, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and Powell, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Stewart, J., joined, post, p. 353. Stevens, J., took no part in the consideration or decision of the case.

      Frank O. Dickey, Jr., argued the cause and filed a brief for petitioners.

      C. Kilmer Combs argued the cause and filed a brief for respondent.
   Mr. Justice White

delivered the opinion of the Court.

The questions in this case are whether a Federal District Judge may remand a properly removed diversity case for reasons not authorized by statute, and, if not, whether;such remand order may be remedied by writ of mandamus.

I

On April 9, 1973, two citizens and residents of Kentucky filed an action in a Kentucky state court against Thermtron Products, Inc., an Indiana corporation without office or place of business in Kentucky, and one Larry Dean Newhard, an employee of Thermtron and a citizen and resident of Indiana, seeking damages for injuries arising out of an automobile accident between plaintiffs’ automobile and a vehicle driven by Newhard. Service on the defendants, who are petitioners here, was by substituted service on the Secretary of State of the Commonwealth, pursuant to Kentucky law. Later that month, petitioners removed the cause to the United States District Court for the Eastern District of Kentucky pursuant to 28 U. S. C. §§ 1441 and 1446. The case was assigned a number, and tbe defendants filed their answer and later proceeded with discovery. On February 5, 1974, respondent judge issued an order in the case which recited that the action “was removed from the Pike Circuit Court, Pike County, Kentucky, on April 30, 1973, pursuant to the provisions of 28 U. S. C. § 1446,” that his court had reviewed its entire civil docket and found “that there is no available time in which to try the above-styled action in the foreseeable future” and that an adjudication of the merits of the case would be expedited in the state court. Record 31. The order then called upon the defendants to show cause “why the ends of justice do not require this matter [to] be remanded to the Pike Circuit Court . . . .” Ibid. In response to the order, petitioners asserted that they believed they could not have a fair and impartial trial in the state courts, that the cause had been properly removed pursuant to the applicable statutes, that petitioners had a federal right to have the cause tried in the federal court, that respondent had no discretion to remand the case merely because of a crowded docket, and that there was no other legal ground for the remand.

On March 22, 1974, respondent filed a memorandum opinion and order remanding the case to the Pike Circuit Court. The opinion noted petitioners’ contention that they had a “right” to remove the action by properly invoking 28 U. S. C. § 1441, and remarked that “[t]he court must concede that fact.” Record 36. That right, the opinion then stated, nevertheless had to be “balanced against the plaintiffs’ right to a forum of their choice and their right to a speedy decision on the merits of their cause of action.” Ibid. Because of the District Court’s crowded docket and because other cases had priority on available trial time, “plaintiffs’ right of redress is being severely impaired,” which “would not be the case if the cause had not been removed from the state courts.” Id., at 37. Remarking that the purpose of the removal statute was to prevent prejudice in local courts and being of the view that petitioners had made no showing of possible prejudice that might follow from remand, respondent then ordered the case remanded.

Petitioners then filed in the Court of Appeals for the Sixth Circuit their alternative petition for writ of mandamus or prohibition, requesting relief on the ground that the action had been properly removed and that respondent had no authority or discretion whatsoever to remand the case on the ground asserted by him. Based on the petition and respondent’s response, the Court of Appeals denied the petition after concluding (1) that the District Court had jurisdiction to enter the order for remand and (2) that the Court of Appeals had no jurisdiction to review that order or to issue mandamus because of the prohibition against appellate review contained in 28 U. S. C. § 1447 (d). We granted the petition for certiorari, 420 U. S. 923 (1975), and now reverse.

II

Title 28 U. S. C. § 1441 (a) provides that unless 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 to the district court of the United States. Section 1446 provides the procedure for removal; and a case removed under that section may be remanded only in accordance with § 1447 which governs procedure after removal. Section 1447 (c) provides in part:

“If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.”

The following section, § 1447 (d), generally forbids review of remand orders:

“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it is removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.”

It is unquestioned in this case and conceded by petitioners that this section prohibits review of all remand orders issued pursuant to § 1447 (c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ. This has been the established rule under § 1447 (d) and its predecessors stretching back to 1887. See, e. g., In re Pennsylvania Co., 137 U. S. 451 (1890); Ex parte Matthew Addy S. S. Co., 256 U. S. 417 (1921); Employers Reinsurance Corp. v. Bryant, 299 U. S. 374 (1937); United States v. Rice, 327 U. S. 742 (1946). If a trial judge purports to remand a case on the ground that it was removed “improvidently and without jurisdiction,” his order is not subject to challenge in the court of appeals by appeal, by mandamus, or otherwise.

The issue before us now is whether § 1447 (d) also bars review where a case has been properly removed and the remand order is issued on grounds not authorized by § 1447 (c). Here, respondent did not purport to proceed on the basis that this case had been removed “improvidently and without jurisdiction.” Neither the propriety of the removal nor the jurisdiction of the court was questioned by respondent in the slightest. Section 1447 (c) was not even mentioned. Instead, the District Court’s order was based on grounds wholly different from those upon which § 1447 (c) permits remand. The determining factor was the District Court’s heavy docket, which respondent thought would unjustly delay plaintiffs in going to trial on the merits of their action. This consideration, however, is plainly irrelevant to whether the District Court would have had jurisdiction of the case had it been filed initially in that court, to the remova-bility of a case from the state court under § 1441, and hence to the question whether this cause was removed “improvidently and without jurisdiction” within the meaning of the statute.

Removal of cases from state courts has been allowed since the first Judiciary Act, and the right to remove has never been dependent on the state of the federal court’s docket. It is indeed unfortunate if the judicial manpower provided by Congress in any district is insufficient to try with reasonable promptness the cases properly filed in or removed to that court in accordance with the applicable statutes. But an otherwise properly removed action may no more be remanded because the district court considers itself too busy to try it than an action properly filed in the federal court in the first instance may be dismissed or referred to state courts for such reason. McClellan v. Carland, 217 U. S. 268 (1910); Chicot County v. Sherwood, 148 U. S. 529 (1893); Hyde v. Stone, 20 How. 170 (1858).

We agree with petitioners: The District Court exceeded its authority in remanding on grounds not permitted by the controlling statute.

Ill

Although the Court of Appeals, erroneously we think, held that the District Court had jurisdiction to enter its remand order, the Court of Appeals did not mention § 1447 (c), did not suggest that the District Court had proceeded under that section, properly or improperly, and did not itself suggest that this case was not removable under § 1441 or that it had been improvidently removed from the state court for want of jurisdiction or otherwise. In the face of petitioners’ position that the remand was for reasons not authorized by the statute, the Court of Appeals acted solely on the ground that under § 1447 (d) it had no jurisdiction to entertain a petition for writ of mandamus challenging the remand order issued by respondent in this case.

We disagree with that conclusion. Section 1447 (d) is not dispositive of the reviewability of remand orders in and of itself. That section and § 1447 (c) must be construed together, as this Court has said of the predecessors to these two sections in Employers Reinsurance Corp. v. Bryant, supra, at 380-381, and Kloeb v. Armour & Co., 311 U. S. 199, 202 (1940). These provisions, like their predecessors, “are in pari materia [and] are to be construed, accordingly rather than as distinct enactments . . . Employers Reinsurance Corp. v. Bryant, supra, at 380. This means that only remand orders issued under § 1447 (c) and invoking the grounds specified therein — that removal was improvident and without jurisdiction — are immune from review under § 1447 (d).

Section 1447 (d) has its roots in the Act of Mar. 3, 1887, 24 Stat. 552. Prior to 1875, orders of remand were not reviewable by appeal or writ of error for want of a final judgment. Railroad Co. v. Wiswall, 23 Wall. 507 (1875). Section 5 of the Judiciary Act of 1875, 18 Stat. 472, provided that if the trial court became satisfied at any time during the pendency of a case brought in or removed to that court that the case did not really or substantially involve a dispute or controversy properly within its jurisdiction, the action was to be either dismissed or remanded to the court from which it was removed as justice might require. The section expressly provided that the order dismissing or remanding the cause was to be reviewable on writ of error or appeal. The Act of Mar. 3, 1887, however, while not disturbing the provision for dismissal or remand for want of jurisdiction, not only repealed the provision in § 5 of the 1875 Act providing for appellate review of remand orders but contained a provision that “improperly removed” cases should be remanded and that “no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.” 24 Stat. 553. (Emphasis added.)

These provisions for the disposition of removed cases where jurisdiction was lacking or removal was otherwise improper, together with the prohibition of appellate review, were later included in §§28 and 37 of the Judicial Code of 1911, appeared in 28 U. S. C. §§ 71 and 80 (1946 ed.), 36 Stat. 1094, 1098, and endured until 1948 when 28 U. S. C. § 1447 was enacted — -minus, however, the prohibition against appellate review. The omission was corrected in 1949 when the predecessor of the present subsection (d) came into being.

Until 1948, then, district courts were authorized to remand cases over which they had no jurisdiction or which had been otherwise “improperly” removed, and district court orders “so remanding” were not appealable. It was held that a case remanded for want of jurisdiction under § 80, which itself contained no prohibition of appellate review, was an “improperly” removed case under § 71 and hence subject to the reviewability bar of that section. Employers Reinsurance Corp. v. Bryant, 299 U. S. 374 (1937). But under the plain language of § 71, a case was “so- remanded” and within the review-ability prohibition only if it had been improperly removed. Insofar as we are advised, no case in this Court ever held that § 71 prohibited appellate review by mandamus of a remand order not purporting to be based on the statutory ground.

Sections 1447 (c) and (d) represent the 1948 recodifi-cation of §§71 and 80. They were intended to restate the prior law with respect to remand orders and their reviewability. There is no indication whatsoever that Congress intended to extend the prohibition against review to reach remand orders entered on* grounds not provided by the statute.

There is no doubt that in order to prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues, United States v. Rice, 327 U. S., at 751, Congress immunized from all forms of appellate review any remand order issued on the grounds specified in § 1447 (c), whether or not that order might be deemed erroneous by an appellate court. But we are not convinced that Congress ever intended to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute. That justice may move more slowly in some federal courts than in their state counterparts is not one of the considerations that Congress has permitted the district courts to recognize in passing on remand issues. Because the District Judge remanded a properly removed case on grounds that he had no authority to consider, he exceeded his statutorily defined power; and issuance of the writ of mandamus was not barred by § 1447 (d).

In so holding we neither disturb nor take issue with the well-established general rule that § 1447 (d) and its predecessors were intended to forbid review by appeal or extraordinary writ of any order remanding a case on the grounds permitted by the statute. But this Court has not yet construed the present or past prohibition against review of remand orders so as to extinguish the power of an appellate court to correct a district court that has not merely erred in applying the requisite provision for remand but has remanded a case on grounds not specified in the statute and not touching the propriety of the removal. We decline to construe § 1447 (d) so woodenly as to reach that result now.

IV

There remains the question whether absent the bar of § 1447 (d) against appellate review, the writ of mandamus is an appropriate remedy to require the District Court to entertain the remanded action. The answer is in the affirmative.

A “traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943); Ex parte Peru, 318 U. S. 578, 584 (1943); Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 382 (1953). “Repeated decisions of this Court have established the rule . . . that the writ will lie in a proper case to direct a subordinate Federal court to decide a pending cause,” Insurance Co. v. Comstock, 16 Wall. 258, 270 (1873), or to require “a Federal court of inferior jurisdiction to reinstate a case, and to proceed to try and adjudicate the same.” McClellan v. Garland, 217 U. S., at 280.

In accordance with the foregoing cases, this Court has declared that because an order remanding a removed action does not represent a final judgment re viewable by appeal, “[t]he remedy in such a case is by mandamus to compel action, and not by writ of error to review what has been done.” Railroad Co. v. Wiswall, 23 Wall., at 508. Absent statutory prohibitions, when a remand order is challenged by a petition for mandamus in an appellate court, “the power of the court to issue the mandamus would be undoubted.” In re Pennsylvania Co., 137 U. S., at 453. There is nothing in our later cases dealing with the extraordinary writs that leads us to question the availability of mandamus in circumstances where the district court has refused to adjudicate a case, and has remanded it on grounds not authorized by the removal statutes. See Will v. United States, 389 U. S. 90 (1967); Schlagenhauf v. Holder, 379 U. S. 104 (1964); La Buy v. Howes Leather Co., 352 U. S. 249 (1957); McCullough v. Cosgrave, 309 U. S. 634 (1940); Los Angeles Brush Corp. v. James, 272 U. S. 701 (1927). On the contrary, these cases would support the use of mandamus to prevent nullification of the removal statutes by remand orders resting on grounds having no warrant in the law.

The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

So ordered.

Mr. Justice Stevens took no part in the consideration or decision of this case.

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Stewart join, dissenting.

The Court begins its discussion in this case by asking the wrong questions, and compounds its error by arriving at the wrong answer to at least one of the questions thus posed. The principal, and in my view only, issue presented for review is whether the Court of Appeals was correct in concluding that it was without jurisdiction to review the order of remand entered by the District Court for the Eastern District of Kentucky. If no jurisdiction existed, it of course follows that there was no power in the Court of Appeals to examine the merits of petitioners’ contentions that the order of remand exceeded respondent’s authority, and that its order denying relief must be affirmed. Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884). As I think it plain that Congress, which has unquestioned authority to do so, Sheldon v. Sill, 8 How. 441 (1850), has expressly prohibited the review sought by petitioners, I dissent.

I

The Court of Appeals not unreasonably believed that 28 U. S. C. § 1447 (d) means what it says. It says:

“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . . .”

Nor was the Court of Appeals confronted with a question of first impression. As the Court recognizes, the limitation found in § 1447 (d) has remained substantially unchanged since its enactment in 1887, and this Court has consistently ruled that the provision prohibits any form of review of remand orders.

Congress’ purpose in barring review of all remand orders has always been very clear — to prevent the additional delay which a removing party may achieve by seeking appellate reconsideration of an order of remand. The removal jurisdiction extended by Congress works a significant interference in the conduct of litigation commenced in state court. While Congress felt that making available a federal forum in appropriate instances justifies some such interruption and delay, it obviously thought it equally important that when removal to a federal court is not warranted the case should be returned to the state court as expeditiously as possible. If this balanced concern is disregarded, federal removal provisions may become a device affording litigants a means of substantially delaying justice.

It is clear that the ability to invoke appellate review, even if ultimately unavailing on the merits, provides a significant opportunity for additional delay. Congress decided that this possibility was an unacceptable source of additional delay and therefore made the district courts the final arbiters of whether Congress intended that specific actions were to be tried in a federal court.

I do not doubt that the district courts may occasionally err in making these decisions, and certainly Congress was not unaware of these probabilities. All decision-makers err from time to time, and judicial systems frequently provide some review to remedy some of those errors. But such review is certainly not compelled. Congress balanced the continued disruption and delay caused by further review against the minimal possible harm to the party attempting removal — who will still receive a trial on the merits before a state court which cannot be presumed to be unwilling or unable to afford substantial justice — and concluded that no review should be permitted in these cases. Congress has explicitly indicated its intent to achieve this result; indeed “[i]t is difficult to see what more could be done to make the action of [remand] final, for all the purposes of the removal, and not the subject of review . . . Morey v. Lockhart, 123 U. S. 56, 57 (1887). Yet the Court today holds that Congress did not mean what it so plainly said.

The majority attempts to avoid the plain language of § 1447 (d) by characterizing the bar to review as limited to only those remand orders entered pursuant to the directive of § 1447 (c), i. e., those cases “removed improvidently and without jurisdiction.” But such a crabbed reading of the statute ignores the undoubted purpose behind the congressional prohibition. If the party opposing a remand order may obtain review to litigate whether the order was properly pursuant to the statute, his ability to delay and to frustrate justice is wide ranging indeed. By permitting such a result here, the Court effectively undermines the accepted rule established by Congress and adhered to for almost 90 years.

Nor is it any more than a naive hope to suppose, as the Court apparently does, that the effect of today’s decision will be limited to the unique circumstances of this case. According to the Court, this case is beyond the reach of § 1447 (d) by virtue of the fact that respondent appears to have expressly premised his remand of the case before him on a ground not authorized by Congress, a conclusion purportedly drawn from the face of respondent’s order. I may agree, arguendo, that an order of remand based upon the clogged docket of the district court and a desire to obtain for the parties a trial in some forum without unreasonable delay, however salutary the motivation behind it, is not within the discretion placed in district courts by Congress. But I fail to see how such an order of remand is any more unauthorized than one where the district court erroneously concludes that an action was removed “improvidently and without jurisdiction.” Surely such an error equally contravenes congressional intent to extend a “right” of removal to those within the statute’s terms. Yet such an error, until today, never has been thought subject to challenge by appeal or extraordinary writ.

The Court seems to believe the instant case different because it has determined to its satisfaction that respondent’s order was not merely an erroneous application of § 1447 (c), but was based upon considerations district courts are not empowered to evaluate. I think the Court’s purported distinction both unworkable and portentous of the significant impairment of Congress’ carefully worked out scheme. The Court relies upon its belief that respondent’s order made clear that he was not acting in accordance with § 1447 (c). But there was no requirement that respondent issue any explanation of the grounds for his remand order, and there is no reason to expect that district courts will always afford such explanations. If they do not, is there now jurisdiction in the courts of appeals to compel an explanation so as to evaluate potential claims that the lower court was not acting pursuant to subsection (c)? And what if the district court does state that it finds no jurisdiction, using the rubric of § 1447 (c), but the papers plainly demonstrate such a conclusion to be absurd? Are potential challengers to such an order entitled to seek the aid of the court of appeals, first to demonstrate that the order entered by the lower court was a sham and second to block that order pursuant to today’s decision? If the Court’s grant of certiorari and order of reversal in this case are to have any meaning, it would seem that such avenues of attack should clearly be open to potential opponents of orders of remand. Yet it is equally clear that such devices would soon render meaningless Congress’ express, and heretofore fully effective, directive prohibiting such tactics because of their potential for abuse by those seeking only to delay.

II

The majority’s only support for its conclusion that § 1447 (d) no longer means what everyone thought it did is the fact that the predecessor statute provided:

“Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal from the decision of the district court so remanding such cause shall be allowed.” 28 U. S. C. § 71 (1946 ed.).

In the Court's view the words “so remanding” limited the bar of the prior statute. But this appears a novel construction of the former § 71. If “so remanding” had any limiting effect upon the prohibition against review, it would seem to have restricted the bar to only those cases which a district court determined to have been “improperly removed,” as described in the above-quoted sentence. Yet this Court early held that the original prohibition against review of remand orders contained in the Act of Mar. 3, 1887, 24 Stat. 563, applied to bar review not only of remands of removals taken on account of prejudice or local influence — which were not remanded because “improperly removed” but rather pursuant to independent statutory directives requiring the district courts to remand such cases unless they found the opposing party could not obtain justice in the state court — but also of all other remands entered by a district court. Rejecting an argument essentially identical to that advanced by the majority, the Court there held:

“The fact that it is found at the end of the section, and immediately after the provision for removals on account of prejudice or local influence, has, to our minds, no special significance. Its language is broad enough to cover all cases, and such was evidently the purpose of Congress.” Morey, 123 U. S., at 58.

In Employers Reinsurance Corp. v. Bryant, 299 U. S. 374 (1937), the Court reiterated its Morey holding, ruling that even though the 1911 revision of the Judicial Code had split removal and remand provisions into various sections, the prohibition against review continued to bar all attempts to challenge orders of remand. The majority characterizes Bryant as holding that orders of remand issued pursuant to former 28 U. S. C. § 80 (1946 ed.) were cases “improperly removed” within the meaning of § 71 of that Title. Ante, at 348. But there is no such statement anywhere in Bryant, and that case’s clearly stated holding is that the prohibitions against review of remand orders originally enacted in 1887 (and still in effect) “are intended to reach and include all cases removed from a state court into a federal court and remanded by the latter.” 299 U. S., at 381. See United States v. Rice, 327 U. S. 742, 752 (1946).

Even if one were to accept the majority’s theory that “so remanding” somehow limited the otherwise universal prohibition against review, there is no such phrase in the current statute. The majority attempts to avoid this by contending that Congress “intended to restate the prior law with respect to remand orders and their re-viewability.” Ante, at 349-350. But this assertion flies in the face of the fact that in revising and codifying Title 28, Congress intended to, and did, work significant changes in prior law governing the Judicial Code and the judiciary. The House Committee made clear that the proposed revisions to the removal provisions effectuated a substantially altered and less cumbersome scheme of removal, in which several prior avenues to federal court had been removed so as to restrict federal jurisdiction. H. R. Rep. No. 308, 80th Cong., 1st Sess., 6, A133-A134. And with respect to the section at issue here, § 1447, the House Judiciary Committee noted that the new

“[sjection consolidates procedural provisions of sections 71, 72, 74, 76, 80, 81 and 83 of title 28, U. S. C. 1940 ed., with important changes in substance and phraseology.” Id., at A-136.

It is difficult to see how changes thus described by the Committee can have had no effect on the law.

The Court stresses that the 1949 reintroduction of the bar to review, apparently inadvertently omitted from the 1948 revision of the Judicial Code, was intended to enact the same rule of finality previously in effect. Ante, at 350 n. 15. I agree with this interpretation, but not with the Court’s application of it. The “former law as to finality” which was continued by subsection (d) is that which had been in effect from 1887. Congress has made all judgments “remanding a cause to the state court final and conclusive.” In re Pennsylvania Co., 137 U. S. 451, 454 (1890); Bryant, supra. Until today it has not been doubted that

“Congress, by the adoption of these provisions, . . . established the policy of not permitting interruption of the litigation of the merits of a removed cause by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed. This was accomplished by denying any form of review of an order of remand . . . .” United States v. Rice, supra, at 751.

Ill

Finally, I perceive no justification for the Court’s decision to ignore the express directive of Congress in favor of what it personally perceives to be “justice” in this case. If anything is clear from the history of the prohibition against review, it is that Congress decided that potential errors in individual cases did not justify permitting litigants to challenge remand orders. To carry out its policy of avoiding further interruption of the litigation of removed causes, properly begun in state courts, see Rice, supra, at 751-752, Congress decided to place final responsibility for implementation of its removal scheme with the district courts. It is not for this Court to strike that balance anew.

Congress has demonstrated its ability to protect against judicial abuses of removal rights when it thought it necessary to do so. See Georgia v. Rachel, 384 U. S. 780 (1966); City of Greenwood v. Peacock, 384 U. S. 808 (1966). And it is apparent that the judiciary is not without the means of dealing with such errors as pose some danger of repetition. Rather than leaving future repetition of cases such as this to Congress, the Court sets out to right a perceived wrong in this individual case. In the process of doing so it reopens an avenue for dilatory litigation which Congress had explicitly closed. Because I am convinced that both the Court of Appeals and this Court are without jurisdiction to consider the merits of petitioners’ claims, I would affirm the judgment below.

       Title 28 U. S. C. § 1441 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.
      “(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
      “(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.”

       Title 28 U. S. C. § 1446 provides:
      “(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.
      “(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
      “If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
      “(c) The petition for removal of a criminal prosecution may be filed at any time before trial.
      “(d) Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety conditioned that the defendant or defendants will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.
      “(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
      “(f) If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into his custody and deliver a copy of the writ to the clerk of such State court.”

       The condition of respondent’s docket and the priority for trial of cases on the docket were explained by respondent in the memorandum opinion and order, Record 36-37:
      “At the close of business on February 28, 1974 there were pending on the dockets for which this Court has primary responsibility a total of eighty (80) criminal actions and three hundred ninety-four (394) civil actions. These cases have been assigned various priorities. The first priority is granted criminal actions. Social Security and Black Lung cases* have a priority second only to criminal cases. Webb v. Richardson, 472 F. 2d 529, 538 (6th Cir. 1972). A third priority is granted those actions in which the United States is a party. The lowest priority, as a matter of necessity, is assigned private civil actions. Consequently, the period between the filing of such actions and the time in which they are assigned for trial must, regrettably, continually be extended.”
      “*At the present time the Eastern District of Kentucky is experiencing an influx of Black Lung related actions. The Department of Health, Education and Welfare predicts that a total in excess of four thousand (4,000) of these actions will ultimately be filed in this District.”

       Apparently respondent entered similar orders of remand in other diversity cases removed to his court. Petitioners stated in their petition for a writ of mandamus in the Court of Appeals that they believed “upon information only, that the Respondent herein has entered similar Orders of Remand in approximately 28 other actions, which actions either were removed to the United States District Court for the Eastern District of Kentucky, at Pikeville, in 1973, or which actions constitute ’ all cases removed to said Court during the year 1973.” Id., at 8-9. At oral argument before this Court, petitioners’ counsel stated that during 1973, 14 cases had been removed from the Pike Circuit Court to respondent’s court and that in every case respondent had issued orders to defendants to show cause why the cases should not be remanded to the state court. Petitioners’ counsel further stated that respondent had entered orders of remand to the state court in all but two of those cases. Tr. of Oral Arg. 8.

       See n. 1, supra.

       See n. 2, supra.

       Title 28 U. S. C. § 1443 provides:
      “Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
      “(1) Against any person who is denied or cannot enforce in. the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
      “(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.”
      Title 28 U. S. C. §1447 (d), as amended in 1949, was further amended in 1964 to provide expressly for review “by appeal or otherwise” of orders remanding cases that had been removed pursuant to § 1443. § 901 of Civil Rights Act of 1964, 78 Stat. 266. See Georgia v. Rachel, 384 U. S. 780 (1966); City of Greenwood v. Peacock, 384 U. S. 808 (1966).

       So far as the record reveals, it has not been questioned in this case that the cause is between citizens of different States, that it involves a claim of over $10,000 exclusive of interest and costs, that it is within the so-called diversity jurisdiction of the District Court and that it could have been initially filed in the District Court pursuant to 28 U. S. C. § 1331. It also seems common ground that there is no express statutory provision forbidding the removal of this action and that the cause was timely removed in strict compliance with 28 U. S. C. § 1446.

       Lower federal courts have uniformly held that cases properly removed from state to federal court within the federal court's jurisdiction may not be remanded for discretionary reasons not authorized by the controlling statute. Romero v. ITE Imperial Corp., 332 F. Supp. 523, 526 (PR 1971); Isbrandtsen Co. v. Dist. 2, Marine Engineers Ben. Assn., 256 F. Supp. 68, 77 (EDNY 1966); Davis v. Joyner, 240 F. Supp. 689, 690 (EDNC 1964); Vann v. Jackson, 165 F. Supp. 377, 381 (EDNC 1958).

       Section 5 of the Judiciary Act of 1875, 18 Stat. 472, provided:
      “That if, in any suit commenced in a circuit court or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, and shall make such order as to costs as shall be just; but the order of said circuit court dismissing or remanding said cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be.”

       The Act of Mar. 3,1887, e. 373,24 Stat. 553, provided in part:
      “ ‘Whenever any cause shall be removed from any State court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.’ ”

       Title 28 U. S. C. §71 (1946 ed.), which was effective until the 1948 revision, provided in part:
      “Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal from the decision of the district court so remanding such cause shall be allowed.”
      Title 28 U. S. C. § 80 (1946 ed.), which was also effective until the 1948 revision, provided:
      “If in any suit commenced in a district court, or removed from a State court to a district court of the United States, it shall appear to the satisfaction of the said district court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just.”

       As amended in 1949, 28 U. S. C. §1447 (d) (1946 ed., Supp. Ill) provided:
      “(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”
      The subsection took its present form in 1964, when Congress amended the subsection to provide for review of cases removed pursuant to 28 U. S. C. § 1443. See n. 7, supra.

        Kloeb v. Armour & Co., 311 U. S. 199 (1940), upon which respondent relies, plainly did not do so. There, various suits were filed in the Ohio state courts against Armour and an individual. Armour’s removal petitions, filed in the state courts in accordance with the then-controlling procedure and asserting the right to remove because of a separable controversy between it and the plaintiffs, were denied by the trial court. The Ohio Supreme Court reversed, holding that the controversy with Armour was separable and that its removal petitions should have been granted. The trial court complied, and the cases were removed; but a motion to remand was then granted in the Federal District Court on the ground that in its view there was no separable controversy and hence no federal jurisdiction. The Court of Appeals for the Sixth Circuit granted Armour’s mandamus petition, holding that the District Court had no power to determine the separable-controversy issue because that question had been finally determined by the Ohio Supreme Court. The Court of Appeals deemed inapplicable the prohibition against review by appeal or mandamus where the action of the District Court flouted not only the doctrine of res judicata but also the statutes directing courts to give full faith and credit to the decisions of state tribunals. The view of the Court of Appeals was that the prohibition against review contained in § 71 barred review of erroneous decisions but not of those beyond the power of the District Court. In reversing, this Court could not agree with “[t]he suggestion that the federal district court had no power to consider the entire record and pass upon the question of separability, because this point had been finally settled by the Supreme Court of Ohio.” 311 U. S„ at 204. Although the Ohio Supreme Court had held that the state trial court should have relinquished jurisdiction, the federal court was required by the controlling statute to consider its own jurisdiction, which it had proceeded to do in determining that “the controversy was not within the jurisdiction of that court” and that the case should be remanded. The remand order was thus deemed by this Court to be strictly within the power conferred upon the District Court by the statute, inasmuch as it was based on a determination of jurisdiction over the case. Mandamus was therefore barred by § 71.
      It is apparent that Kloeb does not control this case. Kloeb did not hold that mandamus would not fie to challenge an order based upon grounds that the District Court was not empowered by statute to consider. To the contrary, Kloeb held that the District Court was not bound by the state court’s jurisdictional determination, and that the District Court’s remand order, entered for want of jurisdiction in compliance with the controlling statute, was not reviewable by mandamus. In contrast to Kloeb, where the remand for want of jurisdiction was expressly authorized by the statute, here the District Court did not purport to comply with the removal and remand statutes at all. Its remand was on wholly unauthorized grounds.

       When the Judicial Code was revised in 1948, 28 TI. S. C. § 1447 (e) (1946 ed., Supp. II) (now §1447 (c)) provided:
      “If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case.” There was no express provision, as there had been under former § 71, prohibiting review of such order. The Reviser’s Note stated:
      “Subsection (e) [now subsec. (c)] is derived from sections 71 and 80 of title 28, U. S. C., 1940 ed. Such subsection is rewritten to eliminate the cumbersome procedure of remand.” Note following 28 U. S. C. § 1447.
      There was no intent to change the prior law substantively, although the prohibition of appellate review of remand orders contained in § 71 of the old Code was inexplicably omitted. The omission was quickly rectified by the 1949 amendments to the Code. Section 1447 (c) (1946 ed,, Supp. Ill), which had been § 1447 (e) (1946 ed., Supp. II) in the 1948 revision, took its present form and § 1447 (d) (1946 ed., Supp. Ill) was enacted. The House Report on the 1949 amendments explained the addition of § 1447 (d): “This section strikes out subsections (c) and (d) of section 1447 of title 28, U. S. C., as covered by the Federal Rules of Civil Procedure, and adds a new subsection to such section 1447 to remove any doubt that the former law as to the finality of an order of remand to a State court is continued.” H. R. Rep. No. 352, 81st Cong., 1st Sess., 15.
      The plain intent of Congress, which was accomplished with the 1949 amendment, was to recodify the pre-1948 law without material change insofar as the provisions of §§ 71 and 80 of the old Code here relevant were concerned. That the word “improperly” in the old law was changed to “improvidently” in § 1447 (c) (1946 ed., Supp. Ill) with reference to the criteria for remanding cases removed from state and federal court is of no moment. “[N]o changes of law or policy are to be presumed from changes of language in the [1948] revision [of the Judicial Code] unless an intent to make such changes is clearly expressed.” Fourco Glass Co. v. Transmirra Corp., 353 U. S. 222, 227 (1957) (footnote omitted). What this Court said in Employers Reinsurance Corp. v. Bryant, 299 U. S. 374 (1937), with respect to the in pari materia construction of §§ 71 and 80 of the pre-1948 Judicial Code is equally true today of §§ 1447 (c) and (d) in light of the identical substantive content of the two sets of statutory provisions.

      The panel of the Court of Appeals below indicated its intention to report respondent’s actions “to the Circuit Council for the Sixth Circuit, which has supervisory powers over the District Court.”


source: Caselaw Access Project

author: Mr. Justice Rehnquist Me. Justice Blackmun,

license: Public Domain

text:
    RIZZO, MAYOR OF PHILADELPHIA, et al. v. GOODE et al.
    No. 74-942.
    Argued November 11, 1975
    Decided January 21, 1976

      Rehnqtjist, J., delivered the opinion of the Court, in which BtjrgeR, C. J., and Stewart, White, and Powell, JJ., joined. Blacicmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 381. Stevens, J., took no part in the consideration or decision of the case.

      James M. Penny, Jr., argued the cause for petitioners. With him on the briefs was Stephen Arinson.

      Peter Hearn argued the cause for respondents. With him on the brief were Nancy J. Oellman, Jack J. Levine, William Lee Akers, and Harry Lore.

      Briefs of amid curiae urging affirmance were filed by Peter Van N. Lockwood, David Bonderman, J. Harold Flannery, Paul R. Dimond, William E. Caldwell, and Norman J. Chachkin for the Lawyers’ Committee for Civil Rights under Law; by Barry S. Kohn, Deputy Attorney General, Vincent X. Yakowicz, Solicitor General, and Robert P. Kane, Attorney General, for the Commonwealth of Pennsylvania; by Jack Greenberg, James M. Nabñt III, Charles Stephen Ralston, and Drew S. Days III for the NAACP Legal Defense and Educational Fund, Inc.; by Robert M. Landis and Samuel T. Swansen for the Philadelphia Bar Association; by Anthony G. Amsterdam, Melvin L. Wulj, Joel M. Gora, and Sanford J. Rosen for the American Civil Liberties Union et al.; and by Frederic L. Ballard for the Greater Philadelphia Movement.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

The District Court for the Eastern District of Pennsylvania, after parallel trials of separate actions filed in 1970, entered an order in 1973 requiring petitioners “to submit to [the District] Court for its approval a comprehensive program for improving the handling of citizen complaints alleging police misconduct” in accordance with a comprehensive opinion filed together with the order. The proposed program, negotiated between petitioners and respondents for the purpose of complying with the order, was incorporated six months later into a final judgment. Petitioner City Police Commissioner was thereby required, inter alia, to put into force a directive governing the manner by which citizens’ complaints against police officers should henceforth be handled by the department. The Court of Appeals for the Third Circuit, upholding the District Court’s finding that the existing procedures for handling citizen complaints were “inadequate,” affirmed the District Court’s choice of equitable relief: “The revisions were . . . ordered because they appeared to have the potential for prevention of future police misconduct.” 506 F. 2d 542, 548 (1974). We granted certiorari to consider petitioners’ claims that the judgment of the District Court represents an unwarranted intrusion by the federal judiciary into the discretionary authority committed to them by state and local law to perform their official functions. We find ourselves substantially in agreement with these claims, and we therefore reverse the judgment of the Court of Appeals.

I

The central thrust of respondents’ efforts in the two trials was to lay a foundation for equitable intervention, in one degree or another, because of an assertedly pervasive pattern of illegal and unconstitutional mistreatment by police officers. This mistreatment was said to have been directed against minority citizens in particular and against all Philadelphia residents in general. The named individual and group respondents were certified to represent these two classes. The principal petitioners here — the Mayor, the City Managing Director, and the Police Commissioner — were charged with conduct ranging from express authorization or encouragement of this mistreatment to failure to act in a manner so as to assure that it would not recur in the future.

Hearing some 250 witnesses during 21 days of hearings, the District Court was faced with a staggering amount of evidence; each of the 40-odd incidents might alone have been the piece de resistance of a short, separate trial. The District Court carefully and conscientiously resolved often sharply conflicting testimony, and made detailed findings of fact, which both sides now accept, with respect to eight of the incidents presented by the Ooode respondents and with respect to 28 of those presented by COPPAR.

The principal antagonists in the eight incidents recounted in Goode were Officers DeFazio and D'Amico, members of the city’s “Highway Patrol” force. They were not named as parties to the action. The District Court found the conduct of these officers to be violative of the constitutional rights of the citizen complainants in three of the incidents, and further found that complaints to the police Board of Inquiry had resulted in one case in a relatively mild five-day suspension and in another case a conclusion that there was no basis for disciplinary action.

In only two of the 28 incidents recounted in COPPAR (which ranged in time from October 1969 to October 1970) did the District Court draw an explicit conclusion that the police conduct amounted to a deprivation of a federally secured right; it expressly found no police misconduct whatsoever in four of the incidents; and in one other the departmental policy complained of was subsequently changed. As to the remaining 21, the District Court did not proffer a comment on the degree of misconduct that had occurred: whether simply improvident, illegal under police regulations or state law, or actually violative of the individual’s constitutional rights. Respondents’ brief asserts that of this latter group, the facts as found in 14 of them “reveal [federal] violations.” While we think that somewhat of an overstatement, we accept it, arguendo, and thus take it as established that, insofar as the COPPAR record reveals, there were 16 incidents occurring in the city of Philadelphia over a year’s time in which numbers of police officers violated citizens’ constitutional rights. Additionally, the District Court made reference to citizens complaints to the police in seven of those 16; in four of which, involving conduct of constitutional dimension, the police department received complaints but ultimately took no action against the offending officers.

The District Court made a number of conclusions of law, not all of which are relevant to our analysis. It found that the evidence did not establish the existence of any policy on the part of the named petitioners to violate the legal and constitutional rights of the plaintiff classes, but it did find that evidence of departmental procedure indicated a tendency to discourage the filing of civilian complaints and to minimize the consequences of police misconduct. It found that as to the larger plaintiff class, the residents of Philadelphia, only a small percentage of policemen commit violations of their legal and constitutional rights, but that the frequency with which such violations occur is such that “they cannot be dismissed as rare, isolated instances.” COPPAR v. Rizzo, 357 F. Supp. 1289, 1319 (1973). In the course of its opinion, the District Court commented:

“In the course of these proceedings, much of the argument has been directed toward the proposition that courts should not attempt to supervise the functioning of the police department. Although, contrary to the defendants’ assertions, the Court’s legal power to do just that is firmly established, . . . I am not persuaded that any such drastic remedy is called for, at least initially, in the present cases.” Id., at 1320.

The District Court concluded by directing petitioners to draft, for the court’s approval, “a comprehensive program for dealing adequately with civilian complaints,” to be formulated along the following “guidelines” suggested by the court:

“(1) Appropriate revision of police manuals and rules of procedure spelling out in some detail, in simple language, the ’dos and don’ts’ of permissible conduct in dealing with civilians (for example, manifestations of racial bias, derogatory remarks, offensive language, etc.; unnecessary damage to property and other unreasonable conduct in executing search warrants; limitations on pursuit of persons charged only with summary offenses; recording and processing civilian complaints, etc.). (2) Revision of procedures for processing complaints against police, including (a) ready availability of forms for use by civilians in lodging complaints against police officers; (b) a screening procedure for eliminating frivolous complaints; (c) prompt and adequate investigation of complaints; (d) adjudication of non-frivolous complaints by an impartial individual or body, insulated so far as practicable from chain of command pressures, with a fair opportunity afforded the complainant to present his complaint, and to the police officer to present his defense; and (3) prompt notification to the concerned parties, informing them of the outcome.” Id., at 1321.

While noting that the “guidelines” were consistent with “generally recognized minimum standards” and imposed “no substantial burdens” on the police department, the District Court emphasized that respondents had no constitutional right to improved police procedures for handling civilian complaints. But given that violations of constitutional rights of citizens occur in “unacceptably” high numbers, and are likely to continue to occur, the court-mandated revision was a “necessary first step” in attempting to prevent future abuses. Ibid. On petitioners’ appeal the Court of Appeals affirmed.

II

These actions were brought, and the affirmative equitable relief fashioned, under the Civil Rights Act of 1871, 42 U. S. C. § 1983. It provides that “[e]very person who, under color of [law] subjects, or causes to be subjected, any . . . person within the jurisdiction [of the United States] to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in an action at law [or] suit in equity . . . .” The plain words of the statute impose liability — whether in the form of payment of redressive damages or being placed under an injunction — only for conduct which “subjects, or causes to be subjected” the complainant to a deprivation of a right secured by the Constitution and laws.

The findings of fact made by the District Court at the conclusion of these two parallel trials — in sharp contrast to that which respondents sought to prove with respect to petitioners — disclose a central paradox which permeates that court’s legal conclusions. Individual police officers not named as parties to the action were found to have violated the constitutional rights of particular individuals, only a few of whom were parties plaintiff. As the facts developed, there was no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners — express or otherwise — showing their authorization or approval of such misconduct. Instead, the sole causal connection found by the District Court between petitioners and the individual respondents was that in the absence of a change in police disciplinary procedures, the incidents were likely to continue to occur, not with respect to them, but as to the members of the classes they represented. In sum, the genesis of this lawsuit — a heated dispute between individual citizens and certain policemen — has evolved into an attempt by the federal judiciary to resolve a “controversy” between the entire citizenry of Philadelphia and the petitioning elected and appointed officials over what steps might, in the Court of Appeals’ words, “[appear] to have the potential for prevention of future police misconduct.” 506 F. 2d, at 548. The lower courts have, we think, overlooked several significant decisions of this Court in validating this type of litigation and the relief ultimately granted.

A

We first of all entertain serious doubts whether on the facts as found there was made out the requisite Art. Ill case or controversy between the individually named respondents and petitioners. In O’Shea v. Littleton, 414 U. S. 488 (1974), the individual respondents, plaintiffs in the District Court, alleged that petitioners, a county magistrate and judge, had embarked on a continuing, intentional practice of racially discriminatory bond setting, sentencing, and assessing of jury fees. No specific instances involving the individual respondents were set forth in the prayer for injunctive relief against the judicial officers. And even though respondents’ counsel at oral argument had stated that some of the named respondents had in fact “suffered from the alleged unconstitutional practices,” the Court concluded that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects.” Id., at 495-496. The Court further recognized that while “past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury,” the attempt to anticipate under what circumstances the respondents there would be made to appear in the future before petitioners “takes us into the area of speculation and conjecture.” Id., at 496-497. These observations apply here with even more force, for the individual respondents’ claim to “real and immediate” injury rests not upon what the named petitioners might do to them in the future — such as set a bond on the basis of race — but upon what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures. This hypothesis is even more attenuated than those allegations of future injury found insufficient in O’Shea to warrant invocation of federal jurisdiction. Thus, insofar as the individual respondents were concerned, we think they lacked the requisite “personal stake in the outcome,” Baker v. Carr, 369 U. S. 186, 204 (1962), i. e., the order overhauling police disciplinary procedures.

B

That conclusion alone might appear to end the matter, for O’Shea also noted that “if none of the named plaintiffs . . . establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class” which they purport to represent. 414 U. S., at 494. But, unlike O’Shea, this case did not arise on the pleadings. The District Court, having certified the plaintiff classes, bridged the gap between the facts shown at trial and the class-wide relief sought with an unprecedented theory of § 1983 liability. It held that the classes’ § 1983 actions for equitable relief against petitioners were made out on a showing of an “unacceptably high” number of those incidents of constitutional dimension — some 20 in all — occurring at large in a city of three million inhabitants, with 7,500 policemen.

Nothing in Hague v. CIO, 307 U. S. 496 (1939), the only decision of this Court cited by the District Court, or any other case from this Court, supports such an open-ended construction of § 1983. In Hague, the pattern of police misconduct upon which liability and injunctive relief were grounded was the adoption and enforcement of deliberate policies by the defendants there (including the Mayor and the Chief of Police) of excluding and removing the plaintiff's labor organizers and forbidding peaceful communication of their views to the citizens of Jersey City. These policies were implemented “by force and violence” on the part of individual policemen. There was no mistaking that the defendants proposed to continue their unconstitutional policies against the members of this discrete group.

Likewise, in Allee v. Medrano, 416 U. S. 802 (1974), relied upon by the Court of Appeals and respondents here, we noted:

“The complaint charged that the enjoined conduct was but one part of a single plan by the defendants, and the District Court found a pervasive pattern of intimidation in which the law enforcement authorities sought to suppress appellees’ constitutional rights. In this blunderbuss effort the police not only relied on statutes . . . found constitutionally deficient, but concurrently exercised their authority under valid laws in an unconstitutional manner.” Id., at 812 (emphasis added).

The numerous incidents of misconduct on the part of the named Texas Rangers, as found by the District Court and summarized in this Court’s opinion, established beyond peradventure not only a “persistent pattern” but one which flowed from an intentional, concerted, and indeed conspiratorial effort to deprive the organizers of their First Amendment rights and place them in fear of coming back. Id., at 814-815.

Respondents stress that the District Court not only found an “unacceptably high” number of incidents but held, as did the Court of Appeals, that “when a 'pattern of frequent police violations of rights is shown, the law is clear that injunctive relief may be granted.” 357 F. Supp., at 1318 (emphasis added). However, there was no showing that the behavior of the Philadelphia police was different in kind or degree from that which exists elsewhere; indeed, the District Court found “that the problems disclosed by the record . . . are fairly typical of [those] afflicting police departments in major urban areas.” Ibid. Thus, invocation of the word “pattern” in a case where, unlike Hague and Medrano, the defendants are not causally linked to it, is but a distant echo of the findings in those cases. The focus in Hague and Medrano was not simply on the number of violations which occurred but on the common thread running through them: a “pervasive pattern of intimidation” flowing from a deliberate plan by the named defendants to crush the nascent labor organizations. Medrano, supra, at 812. The District Court’s unadorned finding of a statistical pattern is quite dissimilar to the factual settings of these two cases.

The theory of liability underlying the District Court’s opinion, and urged upon us by respondents, is that even without a showing of direct responsibility for the actions of a small percentage of the police force, petitioners’ failure to act in the face of a statistical pattern is indistinguishable from the active conduct enjoined in Hague and Medrano. Respondents posit a constitutional “duty” on the part of petitioners (and a corresponding “right” of the citizens of Philadelphia) to “eliminate” future police misconduct; a “default” of that affirmative duty being shown by the statistical pattern, the District Court is empowered to act in petitioners’ stead and take whatever preventive measures are necessary, within its discretion, to secure the “right” at issue. Such reasoning, however, blurs accepted usages and meanings in the English language in a way which would be quite inconsistent with the words Congress chose in § 1983. We have never subscribed to these amorphous propositions, and we decline to do so now.

Respondents claim that the theory of liability embodied in the District Court’s opinion is supported by desegregation cases such as Swann v. Charlotte-Mecklen-burg Board of Education, 402 U. S. 1 (1971). But this case, and the long line of precedents cited therein, simply reaffirmed the body of law originally enunciated in Brown v. Board of Education, 347 U. S. 483 (1954):

“Nearly 17 years ago this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings.
“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann, supra, at 11, 15.

Respondents, in their effort to bring themselves within the language of Swann, ignore a critical factual distinction between their case and the desegregation cases decided by this Court. In the latter, segregation imposed by law had been implemented by state authorities for varying periods of time, whereas in the instant case the District Court found that the responsible authorities had played no affirmative part in depriving any members of the two respondent classes of any constitutional rights. Those against whom injunctive relief was directed in cases such as Swann and Brown were not administrators and school board members who had in their employ a small number of individuals, which latter on their own deprived black students of their constitutional rights to a unitary school system. They were administrators and school board members who were found by their own conduct in the administration of the school system to have denied those rights. Here, the District Court found that none of the petitioners had deprived the respondent classes of any rights secured under the Constitution. Under the well-established rule that federal “judicial powers may be exercised only on the basis of a constitutional violation,” Swann, supra, at 16, this case presented no occasion for the District Court to grant equitable relief against petitioners.

C

Going beyond considerations concerning the existence of a live controversy and threshold statutory liability, we must address an additional and novel claim advanced by respondent classes. They assert that given the citizenry’s “right” to be protected from unconstitutional exercises of police power, and the “need for protection from such abuses,” respondents have a right to mandatory equitable relief in some form when those in supervisory positions do not institute steps to reduce the incidence of unconstitutional police misconduct. The scope of federal equity power, it is proposed, should be extended to the fashioning of prophylactic procedures for a state agency designed to minimize this kind of misconduct on the part of a handful of its employees. However, on the facts of this case, not only is this novel claim quite at odds with the settled rule that in federal equity cases “the nature of the violation determines the scope of the remedy,” ibid., but important considerations of federalism are additional factors weighing against it. Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the “special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Stefanelli v. Minard, 342 U. S. 117, 120 (1951), quoted in O’Shea v. Littleton, 414 U. S., at 500.

Section 1983 by its terms confers authority to grant equitable relief as well as damages, but its words “allow a suit in equity only when that is the proper proceeding for redress, and they refer to existing standards to determine what is a proper proceeding.” Giles v. Harris, 189 U. S. 475, 486 (1903) (Holmes, J.). Even in an action between private individuals, it has long been held that an injunction is “to be used sparingly, and only in a clear and plain case.” Irwin v. Dixion, 9 How. 10, 33 (1850). When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with “the well-established rule that the Government has traditionally been granted the widest latitude in the 'dispatch of its own internal affairs/ Cafeteria Workers v. McElroy, 367 U. S. 886, 896 (1961)/’ quoted in Sampson v. Murray, 415 U. S. 61, 83 (1974). The District Court’s injunctive order here, significantly revising the internal procedures of the Philadelphia police department, was indisputably a sharp limitation on the department’s “latitude in the ‘dispatch of its own internal affairs.’ ”

When the frame of reference moves from a unitary court system, governed by the principles just stated, to a system of federal courts representing the Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief. Doran v. Salem Inn, Inc., 422 U. S. 922, 928 (1975).

So strongly has Congress weighted this factor of federalism in the case of a state criminal proceeding that it has enacted 28 U. S. C. § 2283 to actually deny to the district courts the authority to issue injunctions against such proceedings unless the proceedings come within narrowly specified exceptions. Even though an action brought under § 1983, as this was, is within those exceptions, Mitchum v. Foster, 407 U. S. 225 (1972), the underlying notions of federalism which Congress has recognized in dealing with the relationships between federal and state courts still have weight. Where an injunction against a criminal proceeding is sought under § 1983, “the principles of equity, comity, and federalism” must nonetheless restrain a federal court. 407 U. S., at 243.

But even where the prayer for injunctive relief does not seek to enjoin the state criminal proceedings themselves, we have held that the principles of equity nonetheless militate heavily against the grant of an injunction except in the most extraordinary circumstances. In O’Shea v. Littleton, supra, at 502, we held that “a major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized in the decisions previously noted.” And the same principles of federalism may prevent the injunction by a federal court of a state civil proceeding once begun. Huffman v. Pursue, Ltd., 420 U. S. 592 (1975).

Thus the principles of federalism which play such an important part in governing the relationship between federal courts and state governments, though initially expounded and perhaps entitled to their greatest weight in cases where it was sought to enjoin a criminal prosecution in progress, have not been limited either to that situation or indeed to a criminal proceeding itself. We think these principles likewise have applicability where injunctive relief is sought, not against the judicial branch of the state government, but against those in charge of an executive branch of an agency of state or local governments such as petitioners here. Indeed, in the recent case of Mayor v. Educational Equality League, 415 U. S. 605 (1974), in which private individuals sought injunctive relief against the Mayor of Philadelphia, we expressly noted the existence of such considerations, saying: “There are also delicate issues of federal-state relationships underlying this case.” Id., at 615.

Contrary to the District Court’s flat pronouncement that a federal court’s legal power to “supervise the functioning of the police department... is firmly established,” it is the foregoing cases and principles that must govern consideration of the type of injunctive relief granted here. When it injected itself by injunctive decree into the internal disciplinary affairs of this state agency, the District Court departed from these precepts.

For the foregoing reasons the judgment of the Court of Appeals which affirmed the decree of the District Court is

Reversed.

Me. Justice Stevens took no part in the consideration or decision of this case.

Me. Justice Blackmun,

with whom Me. Justice Brennan and Me. Justice Marshall join, dissenting.

To be sure, federal-court intervention in the daily operation of a large city’s police department, as the Court intimates, is undesirable and to be avoided if at all possible. The Court appropriately observes, however, ante, at 367, that what the Federal District Court did here was to engage in a careful and conscientious resolution of often sharply conflicting testimony and to make detailed findings of fact, now accepted by both sides, that attack the problem that is the subject of the respondents’ complaint. The remedy was one evolved with the defendant officials’ assent, reluctant though that assent may have been, and it was one that the police department concededly could live with. Indeed, the District Court, in its memorandum of December 18, 1973, stated that “the resolution of all the disputed items was more nearly in accord with the defendants’ position than with the plaintiffs’ position,” and that the relief contemplated by the earlier orders of March 14, 1973, see COPPAR v. Rizzo, 357 F. Supp. 1289 (ED Pa.), “did not go beyond what the defendants had always been willing to accept.” App. 190a. No one, not even this Court’s majority, disputes the apparent efficacy of the relief or the fact that it effectuated a betterment in the system and should serve to lessen the number of instances of deprival of constitutional rights of members of the respondent classes. What is worrisome to the Court is abstract principle, and, of course, the Court has a right to be concerned with abstract principle that, when extended to the limits of logic, may produce untoward results in other circumstances on a future day. See Hudson County Water Co. v. McCarter, 209 U. S. 349, 355 (1908) (Holmes, J.).

But the District Court here, with detailed, careful, and sympathetic findings, ascertained the existence of violations of citizens’ constitutional rights, of a pattern of that type of activity, of its likely continuance and recurrence, and of an official indifference as to doing anything about it. The case, accordingly, plainly fits the mold of Allee v. Medrano, 416 U. S. 802 (1974), and Hague v. CIO, 307 U. S. 496 (1939), despite the observation, 357 F. Supp., at 1319, that the evidence “does not establish the existence of any overall Police Department policy to violate the legal and constitutional rights of citizens, nor to discriminate on the basis of race” (emphasis supplied). I am not persuaded that the Court’s attempt to distinguish those cases from this one is at all successful. There must be federal relief available against persistent deprival of federal constitutional rights even by (or, perhaps I should say, particularly by) constituted authority on the state side.

The Court entertains “serious doubts,” ante, at 371-372, as to whether there is a case or controversy here, citing O’Shea v. Littleton, 414 U. S. 488 (1974). O’Shea, however, presented quite different facts. There, the plaintiff-respondents had alleged a fear of injury from actions that would be subsequent to some future, valid arrest. The Court said:

“We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners .... Under these circumstances, where respondents do not claim any constitutional right to engage in conduct proscribed by therefore presumably permissible state laws, or indicate that it is otherwise their intention to so conduct themselves, the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.” Id., at 497-498.

Here, by contrast, plaintiff-respondents are persons injured by past unconstitutional conduct (an allegation not made in the O’Shea complaint) and fear injury at the hands of the police regardless of whether they have violated a valid law.

To the extent that Part II-A of the Court’s opinion today indicates that some constitutional violations might be spread so extremely thin as to prevent any individual from showing the requisite case or controversy, I must agree. I do not agree, however, with the Court’s substitution of its judgment for that of the District Court on what the evidence here shows. The Court states that what was shown was minimal, involving only a few incidents out of thousands of arrests in a city of several million population. Small as the ratio of incidents to arrests may be, the District Court nevertheless found a pattern of operation, even if no policy, and one sufficiently significant that the violations “cannot be dismissed as rare, isolated instances.” 357 F. Supp., at 1319. Nothing the Court has said demonstrates for me that there is no justification for that finding on this record. The Court’s criticism about numbers would be just as forceful, or would miss the mark just as much, with 100 incidents or 500 or even 3,000, when compared with the overall number of arrests made in the city of Philadelphia. The pattern line will appear somewhere. The District Court drew it this side of the number of proved instances. One properly may wonder how many more instances actually existed but were unproved because of the pressure of time upon the trial court, or because of reluctant witnesses, or because of inherent fear to question constituted authority in any degree, or because of a despairing belief, unfounded though it may be, that nothing can be done about it anyway and that it is not worth the effort. That it was worth the effort is convincingly demonstrated by the result in the District Court, by the affirmance, on the issues before us, by a unanimous panel of the Third Circuit, and by the support given the result below by the Commonwealth of Pennsylvania, the Philadelphia Bar Association, the Greater Philadelphia Movement, and the other entities that have filed briefs as amici curiae here in support of the respondents.

The Court today appears to assert that a state official is not subject to the strictures of 42 U. S. C. § 1983 unless he directs the deprivation of constitutional rights. Ante, at 375-377. In so holding, it seems to me, the Court ignores both the language of § 1983 and the case law interpreting that language. Section 1983 provides a cause of action where a person acting under color of state law “subjects, or causes to be subjected,” any other person to a deprivation of rights secured by the Constitution and laws of the United States. By its very words, § 1983 reaches not only the acts of an official, but also the acts of subordinates for whom he is responsible. In Monroe v. Pape, 365 U. S. 167 (1961), the Court said that § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions,” id., at 187, and:

“It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of fights, privileges, and immunities guaranteed by the Fourteenth Amendment might- be denied by state agencies.” Id., at 180. (Emphasis added.)

I do not find it necessary to reach the question under what circumstances failure to supervise will justify an award of money damages, or whether an injunction is authorized where the superior has no consciousness of the wrongs being perpetrated by his subordinates. It is clear that an official may be enjoined from consciously permitting his subordinates, in the course of their duties, to violate the constitutional rights of persons with whom they deal. In rejecting the concept that the official may be responsible under § 1983, the Court today easts aside reasoned conclusions to the contrary reached by the Courts of Appeals of 10 Circuits.

In the instant case, the District Court found that although there was no departmental policy of racial discrimination, “such violations do occur, with such frequency that they cannot be dismissed as rare, isolated instances; and that little or nothing is done by the city authorities to punish such infractions, or to prevent their recurrence,” 357 F. Supp., at 1319, and that it “is the policy of the department to discourage the filing of such complaints, to avoid or minimize the consequences of proven police misconduct, and to resist disclosure of the final disposition of such complaints.” Id., at 1318. Needless to say, petitioners were under a statutory duty to supervise their, subordinates. See Philadelphia Home Rule Charter, c. 2, § 5-200. I agree with the District Court that its findings are sufficient to bring petitioners within the ambit of § 1983.

Further, the applicability of § 1983 to controlling officers allows the district courts to avoid the necessity of injunctions issued against individual officers and the consequent continuing supervision by the federal courts of the day-to-day activities of the men on the street. The District Court aptly stated:

“Respect and admiration for the performance of the vast majority of police officers cannot justify refusal to confront the reality of the abuses which do exist. But deference to the essential role of the police in our society does mandate that intrusion by the courts into this sensitive area should be limited, and should be directed toward insuring that the police themselves are encouraged to remedy the situation.” 357 F. Supp., at 1320.

I would regard what was accomplished in this case as one of those rightly rare but nevertheless justified instances — just as Allee and Hague — of federal-court “intervention” in a state or municipal executive area. The facts, the deprival of constitutional rights, and the pattern are all proved in sufficient degree. And the remedy is carefully delineated, worked out within the administrative structure rather than superimposed by edict upon it, and essentially, and concededly, “livable.” In the City of Brotherly Love — or in any other American city — no less should be expected. It is a matter of regret that the Court sees fit to nullify what so meticulously and thoughtfully has been evolved to satisfy an existing need relating to constitutional rights that we cherish and hold dear.

      The complaint in the first action, filed in February 1970 and styled Goode v. Rizzo, was brought by respondent Goode and two other individuals. The second, filed in September 1970 and styled COPPAR v. Tate, was brought by 21 individuals and four organizations: the Council of Organizations on Philadelphia Police Accountability and Responsibility (COPPAR), an unincorporated association composed of some 32 constituent community organizations; the Southern Christian Leadership Conference, whose principal office is in Atlanta, Ga.; and the Black Panther Party and the Young Lords Party, unincorporated associations of black citizens and citizens of Spanish origin, respectively. The latter two groups, of which some of the individual complainants in COPPAR were members, were ultimately dismissed as parties by the District Court for failure to submit to discovery. Both complaints named as defendants those officials then occupying the offices of Mayor, City Managing Director (who supervises and, with the Mayor’s approval, appoints the Police Commissioner), and the Police Commissioner, who has direct supervisory power over the department. Two other police supervisors subordinate to the Commissioner were also named defendants. Both actions were permitted to proceed as class actions, with the individual respondents representing all residents of Philadelphia and an “included” class of all black residents of that city. For a thorough account of the procedural background of this case, see the District Court’s opinion. COPPAR v. Rizzo, 357 F. Supp. 1289 (1973).

       A judgment of considerable detail was entered against petitioners, appropriate substitution having been made in 1973 of the current officeholders, including petitioner Rizzo, by then Mayor. See n. 1, supra. The existing procedure for handling complaints, embodied in the 2%-page “Directive 127” (March 1967), was expanded to an all-encompassing 14-page document reflecting the revisions suggested by the District Court’s “guidelines.” See infra, at 369-370. Directive 127 as revised was ordered by the District Court to be promulgated as such by the Police Commissioner and posted in various public areas, with copies provided anyone who either requested one or inquired generally into the procedure for lodging complaints. A ‘'‘’Citizen’s Complaint Report" was ordered drawn up in a format designated by the court, with copies to be printed and available in sufficient quantities to the public in several locations. The department was further ordered to propose a police recruit training manual reflective of the court’s “guidelines,” with respondents then having the chance to proffer alternative suggestions. Finally, the department was directed to maintain adequate statistical records and annual summaries to provide a basis for the court’s “evaluation” of the program as ordered; the court reserved jurisdiction to review petitioners’ progress in these areas and to grant further relief as might be appropriate. Pet. for Cert. 20a-37a.

       Each of the incidents in Goode and COPPAR is set out in full detail in the District Court’s opinion. 357 F. Supp., at 1294-1316. For present purposes we need only highlight those findings.

       See n. 1, supra.

       Incidents "1” through “3.” 357 F. Supp., at 1294-1297.

       This textual summary of the District Court’s findings with respect to the COPPAR incidents is taken from the Brief for Respondents 14-15, and n. 18

       The Court of Appeals noted that petitioners had in their appeal raised no question of the propriety of the class designation under Fed. Rule Civ. Proc. 23. That issue is therefore not before us, and we express no opinion upon it.

        Lankford v. Gelston, 364 F. 2d 197 (CA4 1966), was also cited by the District Court for the proposition that federal courts have the legal power to “supervise the functioning of the police department.” 357 F. Supp., at 1320. But the court in Lankford intimated no such power, and the facts which confronted it are obviously distinguishable. There, in. executing an “evil practice that has long and notoriously persisted in the Police Department,” the police, searching over a 19-day period for two black men who murdered one of their ranks, conducted some 300 warrantless searches -of private residences in a predominately Negro area “at all hours of the day and night” on nothing more than “unverified anonymous [telephone] tips.” 364 F. 2d, at 198, and 205 n. 9. This “series of the most flagrant invasions of privacy ever to come under the scrutiny of a federal court” arose out of what several experienced police officers testified was a “routine practice” in “serious cases.” Id., at 200-201. Injunctive relief under § 1983 was granted against the defendant Police Commissioner because the wholesale raids were the “effectuation of a plan conceived by high ranking [police] officials,” a practice which in the interim the defendant had “renounced only obliquely, if at all,” and as to which “the danger of repetition has not been removed.” Id., at 202, 204.

       Brief for Respondents 34-35.

      In this regard, however, this Court recently has approved the imposition of criminal liability without “consciousness of wrongdoing” for failure to supervise subordinates. United States v. Park, 421 U. S. 658 (1975). The concept, thus, is far from novel doctrine.

       “Under section 1983, equitable relief is appropriate in a situation where governmental officials have notice of the unconstitutional conduct of their subordinates and fail to prevent a recurrence of such misconduct. Hague v. CIO, 307 U. S. 496 . . . (1939). From a legal standpoint, it makes no difference whether the plaintiffs’ constitutional rights are violated as a result of police behavior which is the product of the active encouragement and direction of their superiors or as a result of the superiors’ mere acquiescence in such behavior. In either situation, if the police officials had a duty, as they admittedly had here, to prevent the officers under their direction from committing the acts which are alleged to have occurred during the Convention, they are proper defendants in this action.” Schnell v. City of Chicago, 407 F. 2d 1084, 1086 (CA7 1969). See also Inmates of Suffolk County Jail v. Eisenstadt, 494 F. 2d 1196, 1199 (CA1), cert. denied, 419 U. S. 977 (1974), and Rozecki v. Gaughan, 459 F. 2d 6, 8 (CA1 1972); Wright v. McMann, 460 F. 2d 126, 134-135 (CA2), cert. denied, 409 U. S. 885 (1972); Lewis v. Kugler, 446 F. 2d 1343, 1351 (CA3 1971); Lankford v. Gelston, 364 F. 2d 197 (CA4 1966); Jennings v. Patterson, 460 F. 2d 1021, 1022 (CA5 1972); Smith v. Ross, 482 F. 2d 33, 36 (CA6 1973); Byrd v. Brishke, 466 F. 2d 6, 10-11 (CA7 1972); Jennings v. Davis, 476 F. 2d 1271, 1275 (CA8 1973); Dewell v. Lawson, 489 F. 2d 877, 881 (CA10 1974); Carter v. Carlson, 144 U. S. App. D. C. 388, 395, 447 F. 2d 358, 365 (1971), rev’d on other grounds sub nom. District of Columbia v. Carter, 409 U. S. 418 (1973).