UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: May 26, 1987.
BLACK & DECKER (U.S.) INC. AND HOME INSURANCE COMPANY, PETITIONER
HONORABLE GARRETT E. BROWN, JR., UNITED STATES DISTRICT JUDGE, NOMINAL RESPONDENT AND GUY BUSSELL, RESPONDENT
SUR PETITION FOR REHEARING
PRESENT: GIBBONS, Chief Judge, SEITZ, WEIS, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN, and GARTH, Circuit Judges
WALTER K. STAPLETON
The petition for rehearing filed by appellant in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
SUR DENIAL OF REHEARING
Judge Garth, as a Senior Circuit Judge, votes for panel rehearing for the reasons expressed in his panel dissent and for the additional reason that this court had ample opportunity to consider the merits of the mandamus petition and was not precluded from doing so in the time prior to the entry of the order of remand.
In may panel dissent I pointed out, among other things, that when the Petition for Writ of Mandamus was presented to us on April 9, 1987, no order of remand had yet been signed, filed, or docketed. The Petition for Rehearing now reveals that the actual order of remand was not field until May 5, 1987. Thus, regardless of reason, no order of remand was entered between April 8, 1987, and May 5, 1987.
The majority's opinion, which holds that this court is barred from reviewing a remand decision even when an order of remand has not been entered, improperly in my view, has expanded 28 U.S.C. § 1447(d) beyond all reason and meaning. This is so particularly in light of the fact that the time period between the district court's opinion filed April 8, 1987 and the subsequent remand order (almost a month) gave ample time for this court to review the merits of the mandamus petition without offending any proscriptions of § 1447(d).
Judge Garth regards this issue as one of sufficient importance to warrant reconsideration by the Court.
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