Appealing Waiver-Based Remands
In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, the Fifth Circuit held that it lacked jurisdiction to review an order that remanded a removed action because the defendant had waived the right to remove. But the panel doubted that doing so was correct. Indeed, the panel seemed almost certain that its decision was wrong. But it was bound by the Fifth Circuit’s decision in In re Weaver, which held that 28 U.S.C. § 1447(d) barred review of such a remand.
The Waiver-Based Remand
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. But the Fifth Circuit concluded that § 1447 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 Watkins Nichols 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, the Fifth Circuit said that waiver-based remands are jurisdictional:
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.”
So Watkins Nichols might be headed for en banc review. Or it might be a good (and easy) candidate for cert.
Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, 2024 WL 3533052 (5th Cir. July 25, 2024), available at the Fifth Circuit and Westlaw
Final Decisions PLLC is an appellate boutique and consultancy that focuses on federal appellate jurisdiction. We partner with lawyers facing appellate-jurisdiction issues, working as consultants or co-counsel to achieve positive outcomes on appeal. Contact us to learn how we can work together.
Learn More ContactRelated Posts
In Dubon v. Jaddou, the Fourth Circuit dismissed an appeal from an order remanding a naturalization action to the U.S. Citizenship and Immigration Services. The court acknowledged that this remand order would be unreviewable in any future proceedings. But it thought that this lack of review was harmless, as the applicant could eventually obtain judicial […]
Continue reading....
In Roberts v. Smith & Wesson Brands, Inc., the Seventh Circuit affirmed a district court order remanding an action to state court. Although remand orders are generally not reviewable on appeal, the defendants in Roberts had invoked federal-officer removal and thus could obtain plenary review. But the Seventh Circuit seemed to think that this invocation […]
Continue reading....
Courts have held that when an “order” is appealable—say, via a certified appeal under 28 U.S.C. § 1292(b) or an exception to 28 U.S.C. § 1447(d)’s bar on remand appeals—the entirety of the district court’s order is within the scope of appeal. So when a district court certifies an order for an immediate appeal under § 1292(b), the […]
Continue reading....
In LeChase Construction Services, LLC v. Argonaut Insurance Co., the Second Circuit held that 28 U.S.C. § 1447(d)’s bar on remand appeals applied to remands under § 1447(e). But the court also held that it could review a remand that, while purportedly under § 1447(e), was actually based on “a patently nonjurisdictional ground, such as prudential considerations.” (Cleaned […]
Continue reading....
In In re Clean Water Act Rulemaking, the Ninth Circuit held that it had jurisdiction to review an order vacating a regulation and remanding the dispute to an agency, as the district court had never deemed the regulation unlawful. This is an interesting twist on the administrative-remand rule. That rule normally bars appeals from orders […]
Continue reading....Recent Posts
I’m thrilled to announce the creation of Final Decisions PLLC, an appellate boutique and consultancy focused on appellate jurisdiction. Through it, I hope to partner with lawyers facing complex appellate-jurisdiction issues. Almost six years ago, I started the Final Decisions blog as a way to keep on top of developments in the world of appellate […]
Continue reading....
In New Albany Main Street Properties v. Watco Companies, LLC, the Sixth Circuit held that it could not review a decision granting leave to amend as part of a qualified-immunity appeal. The leave-to-amend decision was not itself immediately appealable. Nor could it tag along with the denial of immunity (which technically involved qualified immunity under […]
Continue reading....
In Ashley v. Clay County, the Fifth Circuit held that a municipal defendant could appeal a district court’s refusal to resolve an immunity defense despite the district court’s ordering arbitration.
Continue reading....
Courts sometimes suggest that would-be appellants must establish appellate standing by showing that the appealed decision injured the would-be appellant. When the appealing party cannot show this injury, these courts think that they have lost Article III jurisdiction. But as a recent opinion from the D.C. Circuit’s Judge Pillard explained, that’s not quite right. Judge […]
Continue reading....
In Silverthorne Seismic, L.L.C. v. Sterling Seismic Services, Ltd., a majority of the Fifth Circuit held that a motions panel had erred in permitting a certified appeal under 28 U.S.C. § 1292(b). The district court had certified for an immediate appeal a decision on how the plaintiffs could prove reasonable-royalty damages in a trade-secret case. The […]
Continue reading....