Appealing Waiver-Based Remands, Part II
In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, the en banc Fifth Circuit held that 28 U.S.C. § 1447(d) does not bar review of waiver-based remands. In so holding, the court overruled its decision in In re Weaver.
The Waiver-Based Remand
I wrote about the panel’s decision (which called for rehearing en banc) last summer. And only a little background is necessary.
Abrams Watkins started as a Texas state court action involving a variety of business torts. The defendant responded in state court with an anti-SLAPP motion that sought dismissal of the action.
About two weeks later, the defendant removed the action to federal court. But the district court remanded the action after concluding that the defendant waived the right to removal. According to the district court, waiver occurred because the defendant invoked the state court’s jurisdiction by moving to dismiss the action.
The defendant then appealed.
The Panel Decision: No Jurisdiction
The Fifth Circuit concluded that § 1447(d) deprived it of appellate jurisdiction.
The Limits on Remand Appeals
With exceptions irrelevant to the present discussion, 28 U.S.C. § 1447(d) generally bars appeals from 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 was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.
The statute’s language would seem to bar all remand appeals. But the Supreme Court has long held that § 1447(d) must be read in the context of the rest of § 1447. So in Thermtron Products, Inc. v. Hermandsdorfer, the Court held that § 1447(d)’s prohibition on remand appeals applied only to remands authorized by the neighboring § 1447(c). And § 1447(c) addresses remands for (1) a lack of subject matter or (2) a procedural defect in removal. Putting subsections (c) and (d) together, the courts of appeals still have jurisdiction to review any other type of remand.
The Fifth Circuit Precedent on Waiver-Based Remand Appeals
The remand in Abraham Watkins was based on waiver: the district court determined that the defendant waived the right to remove by participating in the state court action. The Fifth Circuit recognized that, at least at first (and perhaps also last) look, this remand was not one of those addressed in § 1447(c). So the court would seem to have jurisdiction to review the remand order.
But in 1980’s In re Weaver:
Even though the specific language of § 1447(c) was not used, it seems apparent that at the time of the remand order, [the district-court judge] believed the case was not removable, leading to the logical inference that he felt jurisdiction was lacking. Such a holding is within the guidelines of § 1447(c).
Because the waiver-based remand in Watkins Nichols was jurisdictional, § 1447(d) barred review. And no intervening change in law undermined Weaver.
Doubts About Weaver
The Fifth Circuit thus “reluctantly” followed Weaver and dismissed the appeal. But the court (and a concurring judge) doubted that Weaver was correct, going so far as to say that the decision “misunderstood the niceties of waiver, jurisdiction, and their relation to § 1447(c).”
The Fifth Circuit also explained that courts of appeals have split on this issue. The Ninth Circuit agrees with the Fifth. But the Tenth Circuit has rejected Weaver, noting that it could “fathom no explanation” for Weaver’s holding. A divided Seventh Circuit did, too, calling Weaver’s rationale “unsound,” “illogical,” and “unpresuasive.”
Rehearing En Banc
Sitting en banc, Fifth Circuit (unsurprisingly) overruled Weaver. The court explained that waiver is not jurisdictional. Subject-matter jurisdiction comes from the Constitution and Congress, while waiver is a common-law doctrine. Jurisdictional defects cannot be waived, and courts must raise them on their own initiative. The same is not true for waiver—parties can waive or forfeit the issue. And while courts review jurisdictional issues de novo, they review waiver issues only for an abuse of discretion.
As for Weaver, the court was critical:
Weaver offers no serious analysis to the contrary. Its reasoning rests on a single premise: that because the district court believed the case was no longer removable, it must have concluded that jurisdiction was lacking. That “logical inference’ is hardly logic at all. It is barely reasoning.
(Citation omitted.) As for the Ninth Circuit’s seeming agreement with Weaver, that court’s decision (1) never endorsed Weaver’s jurisdictional premise, (2) “offered no independent reasoning—only bare reliance on Weaver,” and (3) appeared to be dicta.
The Fifth Circuit also rejected the proffered alternative rationale that waiver was a defect in removal (the other category of unreviewable remand orders). For one thing, Weaver did not rest on that rationale. For another, defects in removal involve failures to satisfy removal’s express statutory requirements.
The en banc court remanded the case to the panel for the resolution of other issues.
Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, 2025 WL 1420220 (5th Cir. May 16, 2025), available at the Fifth Circuit and Westlaw
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