Decision Declining to Exercise Supplemental Jurisdiction under § 1367(c) Is Reviewable under § 1291 Despite § 1447(d) — Mandamus Inapt

In California Dept. of Water Resources v. Powerex Corp., 2008 U.S. App. LEXIS 16252 (9th Cir. July 22, 2008), the Ninth Circuit held that 28 U.S.C. § 1447(d) does not foreclose appellate review of a district court's decision to decline to exercise supplemental jurisdiction under § 1367(c).

The Powerex Court held that the right to appeal lies under 28 U.S.C. § 1291, and that mandamus was not implicated. It observed that:

The distinction between mandamus and appellate review is greater than a simple difference in filing requirements. It is considerably more difficult to obtain a writ of mandamus, for a petitioner will not succeed simply by identifying a lower court's legal error. See Bauman v. U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977) (five-factor balancing test to guide appellate court's mandamus analysis, including whether "district court's order is clearly erroneous as a matter of law"); see also In re Morgan, 506 F.3d 705, 712-13 (9th Cir. 2007) (applying Bauman test).

The Ninth Circuit also held that a decision to decline to exercise supplemental jurisdiction under § 1367(c) is an appealable collateral order within Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).

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