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A central issue in many lawsuits is whether the case will be litigated in state or federal court. This issue typically arises when the plaintiff files suit in state court, the defendant removes the action to federal court, and the plaintiff then moves to remand the case to the state court. Congress has enacted a unique statutory scheme to govern appellate review of the district court’s disposition of motions to remand. In many instances, the statute precludes appellate review altogether. As a result, the district court often is the court of both first and last resort because its remand decisions are unreviewable. This structure is highly unusual in the federal system. See DaWalt v. Purdue Pharma L.P., 397 F.3d 392, 396 (6th Cir. 2005). However, Congress concluded that the value of correcting erroneous remands was outweighed by the need to avoid substantial delay in the state court proceedings while the remand issue was appealed. See Thermtron Products Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976). The complexities of 28 U.S.C. 1447 The key provision is 28 U.S.C. 1447(d): “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” This provision deprives the court of appeals of appellate jurisdiction. Although � 1447(d) appears to be a straightforward bar of appellate review of remand orders, ” ‘[s]traightforward’ is about the last word judges attach to � 1447(d) these days.” In re Amoco Petroleum Additives Co., 964 F.2d 706, 708 (7th Cir. 1992). In Thermtron, the Supreme Court held that � 1447(d) must be construed together with 28 U.S.C. � 1447(c), which sets forth the statutory bases for remanding a removed case. Thus, while the dissent read � 1447(d) as an absolute bar, the majority interpreted it to preclude review only of remand orders based on a ground specified in � 1447(c). Although � 1447(d) has not been modified, � 1447(c) was amended subsequent to Thermtron, and the Supreme Court has never considered the amended version. Nevertheless, the Thermtron analysis remains good law. See In re WTC Disaster Site, 414 F.3d 352, 365-66 (2d Cir. 2005); Autoradid de Energ�a El�ctricia de Puerto Rico v. Ericcson Inc., 201 F.3d 15, 17 (1st Cir. 2000); Snapper Inc. v. Redan, 171 F.3d 1249, 1252-60 (11th Cir. 1999). Accordingly, � 1447(d) proscribes review of a remand order based on � 1447(c). In turn, � 1447(c) now provides that a motion to remand may be based on the “lack [of] subject matter jurisdiction” or “any defect other than lack of subject matter jurisdiction.” For purposes of reviewability, therefore, the pivotal question is the basis of the remand order. If it is a removal “defect” or “lack [of] subject matter jurisdiction” as provided in � 1447(c), review is barred under � 1447(d). This bar of � 1447(d) applies even though the district court’s remand order on those grounds is manifestly erroneous. See Thermtron, 423 U.S. at 351. And the bar extends to all avenues of review, whether by an appeal as of right, a petition for mandamus, or certification pursuant to 28 U.S.C. � 1292(b). See Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723 (1977); WTC Disaster Site, 414 F.3d at 366, 369-71. Indeed, it even precludes reconsideration by the district court itself. See Shapiro v. Logistec USA Inc., 412 F.3d 307, 311-12 (2d Cir. 2005). Because � 1447(d) addresses orders remanding a case back to state court, it is inapplicable where the district court denies the motion to remand. However, such a denial is not an immediately appealable final order. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996). If the court of appeals, on review of the final judgment, concludes that the district court erred in declining to remand, it will vacate the judgment and direct that the case be remanded to state court. See PCI Transp. Inc. v. Fort Worth & West. RR Co., 2005 WL 1731748 at 2-3 (5th Cir. July 26, 2005); Smallwood v. Illinois Cent. RR Co., 385 F.3d 568 (5th Cir. 2004) (en banc), cert. denied, 125 S. Ct. 1825 (2005). See also Caterpillar, supra; Grupo Dataflux v. Atlas Global Group L.P., 541 U.S. 567 (2004). If the district court grants the motion to remand, � 1447(d) comes into play. Appellate courts have rendered a staggering volume of opinions to elucidate the line between reviewable and unreviewable remand orders. For example, the Supreme Court has held that a remand for lack of diversity jurisdiction is not reviewable. See Gravitt, supra. Similarly, an untimely removal constitutes a “defect” under � 1447(c) and hence a remand on that ground is made unreviewable by � 1447(d). Things Remembered Inc. v. Petrarca, 516 U.S. 124 (1995). These decisions typify the run of cases holding that � 1447(d) is a bar to review of remand orders based on a lack of jurisdiction or a removal defect. On the other hand, the Thermtron analysis has permitted review of a number of categories of remand orders that are not based on the lack of subject-matter jurisdiction or a removal defect under � 1447(c). In Thermtron itself, the Supreme Court held that � 1447(d) did not bar review of a remand order based on the district court’s congested docket because that was not a ground for remand specified in � 1447(c). And in Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996), the court allowed review of an order remanding a case to state court pursuant to the doctrine of federal court abstention. In addition, the courts of appeals have upheld review for other types of remand orders. For instance, review will lie for a remand based on the district court’s discretionary decision not to exercise supplemental jurisdiction to adjudicate state-law claims in federal court under 28 U.S.C. � 1367. See Lindsey v. Dillard’s Inc., 306 F.3d 596, 598-99 (8th Cir. 2002); Snapper, 171 F.3d at 1256-57 & n.17. So, too, a remand based on the district court’s discretion not to entertain an action under the Declaratory Judgment Act is subject to review. See Snodgrass v. Provident Life & Accident Ins. Co., 147 F.3d 1163 (9th Cir. 1998). Moreover, remand based on a contractual “forum selection” clause, or a “service of suit” clause, or a clause waiving the right to remove, is reviewable. See Russell Corp. v. American Home Assurance Co., 264 F.3d 1040, 1044 (11th Cir. 2001); Autoradid, 201 F.3d at 17; Snapper, 171 F.3d at 1252-60; Clorox Co. v. United States District Court, 779 F.2d 517, 520 (9th Cir. 1985). Procedural issues also have led to reviewable remand orders. Where a remand was ordered sua sponte without the required timely motion to remand, � 1447(d) did not bar review. See In re Cont’l Cas. Co., 29 F.3d 292, 294 (7th Cir. 1994); In re Allstate, 8 F.3d 219 (5th Cir. 1993). Likewise, review was available of a remand order based on the defendant’s alleged waiver in state court of the right to remove. See Cogdell v. Wyeth, 366 F.3d 1245, 1249 (11th Cir. 2004). Court of appeals decides basis of the remand In determining the basis for a remand order, appellate courts start with the order itself. In most circuits, no specific language is either necessary or sufficient to establish whether the district court remanded on a � 1447(c) ground. Rather, the court of appeals determines for itself what in fact was the actual basis for the district court’s remand. See Shapiro, 412 F.3d at 310-11; In re Stone Container Corp., 360 F.3d 1216, 1218 (10th Cir. 2004); United Investors Life v. Waddell & Reed Inc., 360 F.3d 960 (9th Cir. 2004); Lindsey, 306 F.3d at 598. Some courts have indicated, however, that the district court must affirmatively state a non-� 1447(c) ground for the remand in order for review to be available. See Schexnayder v. Entergy Louisiana, 394 F.3d 280, 283 (5th Cir. 2004); New v. Sports & Recreation Inc., 114 F.3d 1092, 1096 (11th Cir. 1997). Where � 1447(d) does not foreclose review of a remand to state court, the proper procedure is to appeal the order pursuant to 28 U.S.C. 1291. In Quackenbush, the Supreme Court held that a reviewable remand order is immediately appealable under the “collateral order” doctrine. Accordingly, mandamus normally is not the appropriate means for seeking review. See Shapiro, 412 F.3d at 314; Stone Container, 360 F.3d at 1218-20. Class Action Fairness Act provides new appeal Congress recently enacted the Class Action Fairness Act of 2005. Pub. L. No. 109-2, 119 Stat. 4. In general, the act expands federal jurisdiction over large class actions, and it authorizes removal of such actions from state to federal court. The act also contains a specific section providing a new avenue of interlocutory appellate review for orders granting or denying the remand of such removed actions to state court. This provision is an express exception to � 1447(d). See 28 U.S.C. 1453. Review is by petition to the court of appeals. Permission to appeal rests entirely in the discretion of the court of appeals; the district court plays no gatekeeper role. The petition for permission to appeal must be filed within seven days of entry of the district court’s order. Significantly, the judgment disposing of the appeal must be rendered within 60 days of the date the appeal was filed. That deadline may be extended either (1) for 10 days upon good cause shown and in the interests of justice, or (2) for any period of time upon the agreement of all parties to the proceeding. If the court does not issue its judgment within the allowed period, the appeal is denied. Mark I. Levy is the director of the appellate advisory group in the Washington office of Atlanta’s Kilpatrick Stockton. He can be reached at [email protected].

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