“Today, we do what only this court sitting en banc can: we correct course and ‘unweave Weaver.’”
How later courts described this case
- “Today, we do what only this court sitting en banc can: we correct course and ‘unweave Weaver.’”
- praising this approach as “a basic principle of en banc rehearing”
- decided May 16, 2025
Written by the judges who cited it.
The opinion
Case: 23-20337 Document: 171-1 Page: 1 Date Filed: 05/16/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 16, 2025
No. 23-20337 Lyle W. Cayce
____________ Clerk
Abraham Watkins Nichols Agosto Aziz & Stogner,
Plaintiff—Appellee,
versus
Edward Festeryga,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-4249
______________________________
Before Elrod, Chief Judge, Jones, Smith, Stewart, Richman,
Southwick, Haynes, Graves, Higginson, Willett, Ho,
Duncan, Engelhardt, Oldham, Wilson, Douglas and
Ramirez, Circuit Judges.
Don R. Willett, Circuit Judge:
This case asks whether we have appellate jurisdiction to review a
remand order based solely on a defendant’s alleged waiver of the right to
remove. By statute, Congress has sharply limited our power to review district
court orders remanding cases to state court. Specifically, we lack jurisdiction
to review remand orders grounded in either (1) a lack of subject-matter
jurisdiction or (2) a defect in the removal procedure. But a remand based on
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No. 23-20337
a defendant’s alleged waiver—say, by participating in state-court
proceedings before removal—fits neither category. Nonetheless, 45 years
ago in In re Weaver, our circuit inexplicably held otherwise.
Fast forward to today. In this case, a Texas law firm sued one of its
former attorneys, Edward Festeryga, in state court, alleging that he took firm
files and clients to his new practice. Seventeen days later—well within the
30-day statutory removal window—Festeryga removed the case to federal
court. The district court, however, remanded the case, concluding that
Festeryga had waived his removal right by filing a motion to dismiss in state
court. Bound by Weaver—and acknowledging its “erroneous premises”—a
panel of this court “reluctantly” dismissed Festeryga’s appeal for lack of
appellate jurisdiction.1
Today, we do what only this court sitting en banc can: we correct
course and “unweave Weaver.”2
I
This case arises from a dispute between a Texas law firm—Abraham
Watkins Nichols Agosto Aziz & Stogner—and one of its former associates,
Edward Festeryga. After learning that Festeryga had attempted to take
clients and firm files to his new firm, Abraham Watkins terminated his
employment and sued him in Texas state court for various state-law torts.
What followed was a brisk, 17-day flurry of state-court activity.
Abraham Watkins first secured a temporary restraining order barring
Festeryga from spoliating evidence, contacting or representing firm clients,
_____________________
1
Abraham Watkins v. Festeryga, 109 F.4th 810, 814–15 (5th Cir. 2024), reh’g en banc
granted, opinion vacated, 113 F.4th 1019 (5th Cir. 2024).
2
Id. at 817 (5th Cir. 2024) (Duncan, J., concurring).
2
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or disclosing confidential client information. Next, the firm moved for
expedited discovery to obtain communications and documents between
Festeryga and its clients. In response, Festeryga filed a motion to dismiss
under Texas’s anti-SLAPP statute—the Texas Citizens Participation Act
(TCPA).3 That motion triggered an automatic stay of discovery,4 but the
parties later stipulated to a protective order, and Festeryga agreed to produce
certain limited materials.
On the eve of his production deadline, however, Festeryga removed
the case to federal court, invoking diversity jurisdiction based on his
Canadian citizenship.5 Abraham Watkins moved to remand on two grounds:
(1) that Festeryga failed to establish complete diversity of citizenship, and
(2) that he waived his removal rights by filing a motion to dismiss and
stipulating to a protective order in state court. The district court declined to
reach the diversity question but concluded that Festeryga’s TCPA motion
reflected an intent to “invok[e] the jurisdiction of the state court.”6
Accordingly, the court granted the firm’s remand motion.
Festeryga appealed, contending that the district court erred in finding
waiver. Abraham Watkins responded that the panel lacked appellate
jurisdiction to review remand orders based on waiver. Alternatively, the firm
_____________________
3
Tex. Civ. Prac. & Rem. Code §§ 27.001 et seq.
4
Id. § 27.003(c) (“[O]n the filing of a motion under this section, all discovery in
the legal action is suspended until the court has ruled on the motion to dismiss.”).
5
See 28 U.S.C. § 1441(a) (providing that a defendant may remove any civil action
in which “the district courts of the United States have original jurisdiction”); see also id.
§ 1332(a)(2) (providing original federal jurisdiction over civil actions in which “the matter
in controversy exceeds the sum or value of $75,000 . . . and is between citizens of a State
and citizens or subjects of a foreign state”).
6
Johnson v. Heublein, Inc., 227 F.3d 236, 244 (5th Cir. 2000).
3
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maintained that remand was proper regardless—both because waiver had
occurred and because complete diversity was lacking.
Bound by circuit precedent, a panel of this court dismissed the appeal
for lack of appellate jurisdiction. As the panel “reluctantly” noted, Weaver
held that waiver-based remand orders are jurisdictional—and therefore
“immune from review.”7 Thus, even while recognizing “that Weaver rests
on erroneous premises,” the panel dutifully followed our rule of orderliness
and dismissed the appeal.8 Acknowledging that Weaver bound the panel,
Judge Duncan concurred, but urged the en banc court to “unweave
Weaver.”9 We took that invitation seriously—and granted rehearing en banc.
II
A
Removal procedures are governed by statute,10 and Congress has
placed “broad restrictions on the power of federal appellate courts to review
district court orders remanding removed cases to state court.”11 Chief among
those restrictions is 28 U.S.C. § 1447(d), which on its face imposes a
categorical bar: “An order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise.”
Despite this seemingly clear language, the Supreme Court has sharply
narrowed § 1447(d)’s scope.12 The Court has held that § 1447(d) must be
_____________________
7
Abraham Watkins, 109 F.4th at 814.
8
Id. at 815, 817.
9
Id. at 817 (Duncan, J., concurring).
10
28 U.S.C. §§ 1441 et seq.
11
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995).
12
Schexnayder v. Entergy La., Inc., 394 F.3d 280, 283 (5th Cir. 2004).
4
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read in pari materia with its statutory neighbor, § 1447(c).13 In short,
§ 1447(d)’s bar applies only when the remand order rests on the grounds
authorized by § 1447(c).14 So construed, § 1447(d) bars appellate review only
when the remand is based on one of two grounds: (1) a defect in the removal
process, or (2) a lack of subject-matter jurisdiction.15
Remand orders resting on any other ground remain open to appellate
review.16 A few examples: remands based on Burford abstention,17
enforcement of a forum-selection clause,18 or a district court’s decision to
decline supplemental jurisdiction over state-law claims.19
The issue in this appeal is whether a remand based on the defendant’s
alleged waiver of the right to remove—by participating in state-court
_____________________
13
See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345–46 (1976); see also
Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 638 (2009) (“This Court has
consistently held that § 1447(d) must be read in pari materia with § 1447(c), thus limiting
the remands barred from appellate review by § 1447(d) to those that are based on a ground
specified in § 1447(c).”).
14
Schexnayder, 394 F.3d at 283 (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
711–12 (1996)); Grace Ranch, L.L.C. v. BP Am. Prod. Co., 989 F.3d 301, 310–11 (5th Cir.
2021) (“The Supreme Court has held, however, that section 1447(d) only prohibits
appellate review of certain types of remand orders: the kind specified in neighboring
subsection 1447(c).”).
15
See BP P.L.C. v. Mayor and City Council of Balt., 593 U.S. 230, 243 (2021); see
also Things Remembered, 516 U.S. at 127–28 (“As long as a district court’s remand is based
on a timely raised defect in removal procedure or on lack of subject-matter jurisdiction—
the grounds for remand recognized by § 1447(c)—a court of appeals lacks jurisdiction to
entertain an appeal of the remand order under § 1447(d).”).
16
BP P.L.C., 593 U.S. at 243.
17
See Quackenbush, 517 U.S. at 715.
18
Waters v. Browning-Ferris Indus., Inc., 252 F.3d 796, 797 (5th Cir. 2001).
19
Carlsbad Tech., 556 U.S. at 641; see Schexnayder, 394 F.3d at 283 (discussing
examples of non-§ 1447(c) remand grounds for which appeal is permitted).
5
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proceedings—fits within one of § 1447(c)’s two categories. If it does,
§ 1447(d) bars our review. If not, our appellate jurisdiction remains intact.
B
This issue first reached our court 45 years ago. In In re Weaver, a
Georgia corporation filed state-court claims against employees of the Small
Business Administration.20 It sought both damages and injunctive relief to
prevent the sale of corporate assets.21 Although the corporation initially
secured an ex parte injunction, it was soon undone: the defendants “arranged
a telephone conference call with a different superior court judge” who
“vacated the injunction.”22 A few days later, the defendants removed the
case to federal court.23
The district court remanded the case, reasoning that “removal was no
longer available since the [defendants] had sought and obtained the
dissolution of the temporary injunction in state court.”24 After two
unsuccessful motions for reconsideration, the defendants turned to us for
mandamus relief.25
_____________________
20
610 F.2d 335, 335 (5th Cir. 1980).
21
Id. at 335–36.
22
Id. at 336.
23
Id.
24
Id.
25
Id. At the time, the proper avenue for challenging remand orders was by
petitioning for a writ of mandamus. See Thermtron Prods., 423 U.S. at 352–53. The Supreme
Court later clarified that certain remand orders may qualify as a “final decision” appealable
under 28 U.S.C. § 1291. See Quackenbush, 517 U.S. at 712–13; see also Plaquemines Par. v.
Chevron USA, Inc., 84 F.4th 362, 372 (5th Cir. 2023) (“[W]here a remand order is
appealable under section 1447(d), the remand order is treated like any other final
judgment.” (quotations and citation omitted)).
6
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The Weaver panel denied relief. The panel acknowledged that under
the Supreme Court’s decision in Thermtron, § 1447(d) bars appellate review
only when a remand rests on grounds listed in § 1447(c).26 But Weaver
narrowed Thermtron’s scope, holding that appellate review should be
“strictly limited” to cases where the district court “clearly” did not rely on
§ 1447(c)27
In reaching that conclusion, Weaver relied heavily on In re Merrimack
Mutual Fire Insurance Company.28 There, the panel considered a remand
based on destroyed diversity—although the original parties were diverse,
later-added ones were not.29 To assess its appellate jurisdiction, Merrimack
framed the inquiry as whether the district court had relied on a ground
outside § 1447(c). The wrinkle: while lack of diversity is plainly a § 1447(c)
ground, it was unclear whether that section applied when diversity was
destroyed by adding dispensable—rather than indispensable—parties. The
appealability of the remand turned on whether the newly added parties were
dispensable—something the district court never addressed. Merrimack held
that where the basis for remand is ambiguous, appellate review is foreclosed
unless the district court expressly invoked a non-§ 1447(c) ground.30
Returning to Weaver, the panel deemed Merrimack controlling. The
district court’s remand order cited no specific ground under § 1447(c)—but
neither did it identify any basis outside that section. Instead, it “merely
concluded” that removal was unavailable because the defendants “had
_____________________
26
610 F.2d at 336–37.
27
Id. at 337.
28
587 F.2d 642 (5th Cir. 1978).
29
Id. at 644.
30
Id. at 648.
7
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sought the dissolution of the injunction in state court.”31 Weaver reasoned
that a waiver-based remand fell within § 1447(c)’s scope. Although the
district court never cited § 1447(c), Weaver inferred that the court found
removal improper—so “jurisdiction was lacking.”32 And a lack of
jurisdiction, of course, is one of the two enumerated bases for remand under
§ 1447(c).
In short, Weaver held that waiver may be characterized as a
jurisdictional defect—placing it squarely within § 1447(c)’s bar on appellate
review.
C
We reject Weaver’s flawed holding:33 A remand based on waiver is not
jurisdictional. Basic legal principles and overwhelming precedent—not to
mention Abraham Watkins’s concession—compel that conclusion.
“Subject matter jurisdiction defines the court’s authority to hear a
given type of case.”34 That authority derives exclusively from two sources:
_____________________
31
610 F.2d at 337.
32
Id.
33
See Planned Parenthood of Greater Tex. Fam. Plan. & Preventative Health Servs.,
Inc. v. Kauffman, 981 F.3d 347, 369 (5th Cir. 2020) (en banc) (“[T]he court sitting en banc
may overrule or abrogate a panel’s decision if the en banc court concludes that panel
opinion’s holding was indeed flawed.”).
34
Carlsbad Tech., 556 U.S. at 639 (citing United States v. Morton, 467 U.S. 822, 828
(1984); see also Cogdell v. Wyeth, 366 F.3d 1245, 1247 (11th Cir. 2004) (“Jurisdiction is
defined as ‘[a] court’s power to decide a case or issue a decree.’” (citing Black’s Law
Dictionary 855 (7th ed. 1999))).
8
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the Constitution and Congress.35 Waiver comes from neither.36 It is a
doctrine of common-law origin, triggered “when a party voluntarily or
intentionally surrenders a known right.”37 But it is well established that a
party’s litigation conduct can neither confer subject-matter jurisdiction on a
court nor strip it away.38 A party may waive its right to remove a case, but
that waiver bears no relation to the court’s jurisdiction to hear it.
Nor does waiver bear the hallmarks of jurisdiction doctrine.
Jurisdictional defects must be raised sua sponte; waiver need not be.39 Waiver
_____________________
35
Wkly. v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000) (“The jurisdiction of the
federal courts is established by the Constitution and by congressional statutes.”).
36
In this opinion, we use “waiver” to refer specifically to a defendant’s
relinquishment of its removal rights through participation in state-court proceedings. Of
course, a defendant may also waive removal by failing to comply with statutory
requirements—such as filing an untimely notice of removal. See Buchner v. FDIC, 981 F.2d
816, 818 (5th Cir. 1993). Nothing in this opinion addresses such statutory-based waivers.
Our analysis today is focused only on whether we have jurisdiction under § 1447(d) to
review orders based on waiver through state-court participation.
37
C&C Inv. Properties, L.L.C. v. Trustmark Nat’l Bank, 838 F.3d 655, 659 (5th Cir.
2016); see City of Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1093 (10th Cir. 2017)
(“Waiver by participation is a common-law creation.”); see also Rothner v. City of Chicago,
879 F.2d 1402, 1408 (7th Cir. 1989).
38
Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (“Only Congress may determine a
lower federal court’s subject-matter jurisdiction.”); see also Buchner, 981 F.2d at 818
(“Although parties may waive their rights to remove a case or to contest the removal
procedure, they may neither confer subject matter jurisdiction on the district court nor strip
it of such jurisdiction by agreement or waiver.”); Ins. Corp. of Ir., Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 702 (1982) (“[N]o action of the parties can confer subject-
matter jurisdiction upon a federal court.”). To be sure, a party’s conduct may divest federal
courts of jurisdiction where Congress has so prescribed—for example, by adding a
nondiverse party. See Royal Canin U. S. A., Inc. v. Wullschleger, 604 U.S. 22, 37 (2025). But
in such cases, it is Congress—not the party—that strips jurisdiction. The party’s conduct
merely triggers the statutory bar.
39
Compare Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 20 (2017)
(“[C]ourts are obliged to notice jurisdictional issues and raise them on their own
initiative.”), with Pan Am. Bank of Mia. v. Oil Screw Denise, 613 F.2d 599, 602 (5th Cir.
9
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can itself be waived; jurisdiction cannot.40 And while jurisdictional issues are
reviewed de novo, waiver is reviewed for abuse of discretion.41 It is little
surprise, then, that our court has consistently held in analogous contexts that
waiver does not affect jurisdiction.42
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.43
That “logical inference” is hardly logic at all. It is barely reasoning.
Unsurprisingly, other circuits have struggled to make sense of it. The Tenth
Circuit said it could “fathom no explanation” for Weaver.44 The Seventh
Circuit called it “unsound” and “illogical.”45 These courts—plus the
Eleventh Circuit—have all reached the sounder conclusion: waiver-based
_____________________
1980) (“Waiver is an affirmative defense, [] which must be specially pled.” (citation
omitted)). See Soto Enters., 864 F.3d at 1093 (“[U]nlike jurisdictional defects (which cannot
be waived and can be raised sua sponte by the court), courts lack authority to remand sua
sponte for procedural defects, and the parties can waive such defects by failing to raise them
in a timely manner.”).
40
Compare United States v. Kaluza, 780 F.3d 647, 653 (5th Cir. 2015) (“Subject
matter jurisdiction . . . can never be forfeited or waived.” (quotations and citations
omitted)), with Zephyr Aviation, L.L.C. v. Dailey, 247 F.3d 565, 571 n.8 (5th Cir. 2001)
(“Waiver, however, is an affirmative defense that must be raised by the defendant.”).
41
Compare La. Indep. Pharmacies Ass’n v. Express Scripts, Inc., 41 F.4th 473, 478 (5th
Cir. 2022) (“[L]egal questions concerning federal jurisdiction are reviewed de novo.”
(citation omitted)), with Smith v. Travelers Cas. Ins. Co. of Am., 932 F.3d 302, 308 (5th Cir.
2019) (The waiver ruling . . . is reviewed for abuse of discretion.”).
42
See United States v. Story, 439 F.3d 226, 230–31 (5th Cir. 2006) (holding that
appeal waivers do not affect the court’s jurisdiction); Buchner, 981 F.2d at 818 (holding that
a party’s statutory waiver of its removal right has no affect on the court’s jurisdiction to
remand a properly removed case).
43
Weaver, 610 F.2d at 337.
44
Soto Enters., 864 F.3d at 1094.
45
Rothner, 879 F.2d at 1417.
10
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remand orders are not jurisdictional.46 Today we join that consensus and
make clear that Weaver was wrongly decided.
To be sure, the Ninth Circuit once reached the opposite conclusion.
Relying on Weaver, it held that waiver-based remands fall within § 1447(c)
and are thus unreviewable.47 But that decades-old decision carries little
persuasive force—for three reasons. First, although the Ninth Circuit cited
Weaver for the proposition that waiver-based remands are unreviewable
under § 1447(c), it never expressly endorsed Weaver’s mistaken premise that
waiver affects jurisdiction.48 Second, the Ninth Circuit offered no
independent reasoning—only bare reliance on Weaver. But because Weaver
itself offered no justification, the Ninth Circuit’s rote recitation of Weaver’s
conclusion adds no persuasive weight. Finally, the Ninth Circuit’s reference
to Weaver appears to have been dicta.49 The remand order under review
rested not only on waiver, but also on untimely removal—an independent
and mandatory ground for remand. As the Ninth Circuit acknowledged, that
timeliness defect independently barred appellate review.50 And the opinion’s
final sentence confirms that it was this timeliness defect—not the finding of
waiver—that ultimately deprived the court of appellate jurisdiction.51
_____________________
46
See Soto Enters., 864 F.3d at 1094; Rothner, 879 F.2d at 1406; Cogdell, 366 F.3d
at 1249.
47
See Schmitt v. Ins. Co. of N. Am., 845 F.2d 1546, 1549 (9th Cir. 1988).
48
See id. at 1549, 1551.
49
See Rothner, 879 F.2d at 1416 (describing Schmitt’s discussion of waiver as
“superfluous”).
50
Schmitt, 845 F.2d. at 1551.
51
Id. (“Because the remand ordered in the present case was a mandatory remand
under § 1447(c), the order is not reviewable by appeal or otherwise.” (quotations and
citation omitted)).
11
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In short, waiver is not jurisdictional. That conclusion follows from
first principles and is confirmed by the overwhelming weight of circuit
authority. Weaver is analytically unsound and widely discredited. We now
join the prevailing view and make explicit what the law already implies:
waiver-based remand orders do not fall within § 1447(d)’s bar to appellate
review.
D
Reluctant to defend Weaver’s faulty analysis, Abraham Watkins
wisely concedes what settled authority has long made clear: waiver has no
bearing on subject-matter jurisdiction. Instead, the firm seeks to rehabilitate
Weaver by reimagining its rationale. According to Abraham Watkins, Weaver
did not rest on the view that waiver-based remands implicate subject-matter
jurisdiction. Rather, the firm contends that Weaver treated waiver as a defect
in the removal process—the second category of remands covered by
§ 1447(c), and therefore shielded from review under § 1447(d).
That revisionist reading fails for two reasons. First, it is simply not
what Weaver held. Second, even if Weaver had framed waiver as a removal
defect, that rationale is no more defensible than the flawed premise that
waiver is jurisdictional.
1
First, Abraham Watkins’s reimagined reading of Weaver defies any
plausible interpretation of the opinion. Weaver held that waiver-based
remand orders are unreviewable under § 1447(c) because they implicate
jurisdiction—not because they involve a defect in the removal process. The
plain language of Weaver makes that clear. Consider the relevant passage:
Even though the specific language of § 1447(c) was not used, it
seems apparent that at the time of the remand order, Judge
12
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Edenfield 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).52
At the time Weaver was decided, § 1447(c) governed cases “removed
improvidently and without jurisdiction.”53 Although the statute used the
conjunction “and,” courts consistently read it disjunctively—recognizing
two independent grounds for remand.54 Accordingly, Weaver’s conclusion
that waiver-based remands fall within § 1447(c)’s unreviewable scope must
have rested on one of two rationales: either that waiver rendered the removal
“improvident” or that it implicated jurisdiction. The quoted passage leaves
no doubt as to which rationale Weaver adopted: it treated waiver as a
jurisdictional bar.
Abraham Watkins resists that straightforward conclusion. It urges us
to read Weaver as saying the opposite of what it plainly states—that waiver
_____________________
52
Weaver, 610 F.2d at 337.
53
See id. (quoting § 1447(c)). As discussed more fully later in this opinion,
Congress later replaced the term “removed improvidently” with “defect in removal.” See
Snapper, Inc. v. Redan, 171 F.3d 1249, 1254–59 (11th Cir. 1999). But despite the change in
language, the substance remained the same: it referred to violations of the statutory
requirements for removal. See Merrimack, 587 F.2d at 645 n.3 (“Removal cannot have been
improvident if all procedural requirements, E. g., timely filing, have been satisfied.”); see
also Snapper, 171 F.3d at 1254 (“Notwithstanding the potential breadth of the term
‘improvident,’ courts limited the scope of the improvident removal basis for remand by
anchoring the definition in errors in the removal process.”). In its en banc brief, Abraham
Watkins acknowledges that “an ‘improvident removal’ prior to 1988 was considered the
equivalent to a defective removal post-1988.”
54
See In re Medscope Marine Ltd., 972 F.2d 107, 109 (5th Cir. 1992) (“[E]ither
‘improvident removal’ or ‘lack of [subject matter] jurisdiction’ is a proper, independent
basis for remand under section 1447(c).” (citing London v. U.S. Fire Ins. Co., 531 F.2d 257,
260 (5th Cir. 1976))); see also Rothner, 879 F.2d at 1406 (“As a starting point, we note that
although this phrase is worded in the conjunctive, we believe the phrase must be read in
the disjunctive.”).
13
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reflects an “improvident” removal, not a jurisdictional one. To be sure,
“jurisdiction” is a capacious term, and courts once applied it in what the
Supreme Court has called a “‘profligate’ manner.”55 But Weaver did no such
thing. Its treatment of waiver as jurisdictional is anchored in § 1447(c)’s use
of that very term. In short, the decision deemed waiver-based remands
unreviewable because it assumed they fell within § 1447(c)’s “without
jurisdiction” category. It defies reason to recast Weaver as treating waiver as
a removal defect rather than a jurisdictional flaw.
2
Even if Weaver could somehow be read to treat waiver-based remands
as removal defects, as Abraham Watkins urges, we would still reject that
reading. Characterizing waiver as a removal defect is no more defensible than
calling it jurisdictional.
Though § 1447(c)’s language has evolved over time, its “defect”
provision has always referred to violations of statutory requirements
governing removal. A removal defect, then, arises when a defendant fails to
satisfy one of the express statutory conditions for removal. Despite changes
to the statutory text, courts have consistently construed § 1447(c) in line with
that understanding.
When Weaver was decided, § 1447(c) applied to cases “removed
improvidently and without jurisdiction.”56 Although “improvidently” might
seem broad, courts gave it a narrow and precise construction.57 Indeed, both
the Supreme Court and our circuit understood “removed improvidently” to
_____________________
55
See Harrow v. Dep’t of Def., 601 U.S. 480, 489 n.1 (2024).
56
Weaver, 610 F.2d at 337.
57
Snapper, 171 F.3d at 1254 (discussing the historical interpretation of § 1447(c)).
14
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mean removal in violation of statutory requirements. In Thermtron, the
Supreme Court considered a remand based solely on the district court’s
“heavy docket.”58 Explaining why that remand did not involve improvident
removal, the Court emphasized that “there is no express statutory provision
forbidding the removal of this action and that the cause was timely removed
in strict compliance with 28 U.S.C. § 1446.”59 Two years later, our circuit
followed suit, holding that “[r]emoval cannot have been improvident if all
procedural requirements, E. g., timely filing, have been satisfied.”60 Other
circuits likewise adopted narrow readings of the term “removed
improvidently.”61 Thus, by the time Weaver was decided, it was well settled
that “removed improvidently” referred only to violations of statutory
removal requirements.
Congress appears to have endorsed that narrow construction. When
Congress amended § 1447(c) in 1988 to add a timing requirement for remand
motions, it also replaced “removed improvidently” with “any defect in
removal procedure.”62 That change confirmed—and effectively codified—
_____________________
58
Thermtron Prods., 423 U.S. at 344.
59
Id. at 344 n.8.
60
Merrimack, 587 F.2d at 645 n.3. This, perhaps coincidently, supports our reading
of Weaver as treating waiver as a jurisdictional issue rather than a matter of improvident
removal. Weaver cites Merrimack extensively. See 610 F.2d at 337. It would be strange for
Weaver to have relied so strongly on Merrimack and yet ignore Merrimack’s pronouncement
that improvident removal requires a defect in the removal procedural requirements.
61
See Rothner, 879 F.2d at 1411 (“Assuming, then, that Congress intended the term
‘improvidently’ to have meaning, it is logical and reasonable to interpret the term to mean
noncompliance with Congress’ specific and detailed statutory provisions.”); see also Sheet
Metal Workers Int’l Ass’n, AFL-CIO v. Seay, 693 F.2d 1000, 1005 n.7 (10th Cir. 1982),
reh’g denied and opinion modified, 696 F.2d 780 (10th Cir. 1983).
62
See Judicial Improvements and Access to Justice Act of 1988, Pub. L. 100–702,
Title X, § 1016(c), 102 Stat. 4670 (1988); see also Snapper, 171 F.3d at 1254, 1256 n.13.
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the judicial understanding that this category encompasses only statutory
defects in the removal process. It is not a catch-all for all forms of improper
removal.63 Unsurprisingly, courts continued to interpret § 1447(c) that way,
particularly in light of the clarifying language that—apart from jurisdiction—
only statutory defects are covered.64
In 1996, Congress amended the statute again—this time eliminating
the phrase “removal procedure.” It now referred more broadly to “any
defect other than lack of subject matter jurisdiction.”65 At first glance, that
change may seem significant: by replacing “removal procedure” with “any
defect,” the statute could be read to sweep more broadly—perhaps covering
all nonjurisdictional grounds. But every circuit to consider the amended
language—including ours—has “uniformly” rejected that expansive
interpretation.66 Rather, the 1996 amendment sought to resolve a circuit split
over whether § 1447(c) encompassed all statutory removal defects or only
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63
Rothner, 879 F.2d at 1411 (“Replacing the word ‘improvidently’ with ‘defect in
removal procedure’ is consistent with the view that ‘improvidently’ draws its meaning
from the procedural rules set out in the removal statutes.”); see also Medscope Marine, 972
F.2d at 110 (explaining that the 1988 language changes to § 1447(c) was not intended to
change the meaning of the pre-1988 text).
64
See Matter of Cont’l Cas. Co., 29 F.3d 292, 294 (7th Cir. 1994) (“Section 1446
establishes procedures for removal, and a ‘defect in the removal procedure’ means failure
to comply with § 1446.”); Mobil Corp. v. Abeille Gen. Ins. Co., 984 F.2d 664, 666 (5th Cir.
1993) (“[A] remand for reasons not authorized by statute may be appealed.”); see also
Snapper, 171 F.3d at 1256 (“Following the obvious intentions of Congress, courts in most
contexts had no trouble interpreting the 1988 language ‘defect in removal procedure’ as
perpetuating the narrow interpretation that courts had applied to the 1948 version.”).
65
See Pub. L. No. 104–219, 110 Stat. 3022 (1996); see also Snapper, 171 F.3d at 1258.
66
See Grace Ranch, 989 F.3d at 311 (agreeing with the “consensus view” that “any
defect” does not include all nonjurisdictional remands).
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procedural ones.67 By omitting the phrase “removal procedure,” Congress
clarified that § 1447(c) covers all statutory defects—whether procedural or
substantive.68
The bottom line is this: a “defect” under § 1447(c) must be grounded
in a statutory deficiency.69 This was true when Weaver was decided—and it
remains the uniform understanding today.
Accordingly, waiver by participation cannot qualify as a defect under
§ 1447(c) because it is a judicially created, common-law doctrine.70 It is a
“second-order prudential device” with no footing in the removal statutes.71
Because § 1447(c) defects are confined to statutory deficiencies, a finding of
waiver—rooted in non-statutory, common-law principles—cannot qualify.
This is the consensus view among our sister circuits.72 And Abraham Watkins
_____________________
67
See Snapper, 171 F.3d at 1257–58 (describing the circuit split); see also Soto Enters.,
864 F.3d at 1096–97.
68
See Grace Ranch, 989 F.3d at 312 n.9.
69
See id.; see also In re Norfolk S. Ry. Co., 756 F.3d 282, 292 (4th Cir. 2014) (“From
the context of § 1447, it is apparent ‘that “defect” refers to a failure to comply with the
statutory requirements for removal provided in 28 U.S.C. §§ 1441–1453.’” (quoting Kamm
v. ITEX Corp., 568 F.3d 752, 755 (9th Cir. 2009))); Holmstrom v. Peterson, 492 F.3d 833,
837–38 (7th Cir. 2007) (“Instead, the history reflects a congressional fine-tuning of
§ 1447(c) in an attempt to identify motions to remand that are grounded in the precise
directions that Congress has placed in the Judicial Code to govern removal, i.e., the ‘legal
requisites’ for removal.”); Autoridad de Energia Electrica de Puerto Rico v. Ericsson Inc., 201
F.3d 15, 17 (1st Cir. 2000) (“[T]he text of the statute provides a reasonable meaning for the
term ‘defect,’ a meaning that refers to the failure to comply with the various requirements
for a successful removal, as set forth in § 1446(a) and (b).”); Soto Enters., 864 F.3d at 1096
(“[C]ongress intended to broaden the meaning of ‘any defect’ to include all statutory-
based defects but never intended to broaden the meaning beyond this.”).
70
Soto Enters., 864 F.3d at 1093 (“Waiver by participation is a common-law
creation.”); see also Rothner, 879 F.2d at 1408.
71
Badaiki v. Schlumberger Holdings Corp., 512 F. Supp. 3d 741, 745 (S.D. Tex. 2021).
72
See Soto Enters., 864 F.3d at 1097; Rothner, 879 F.2d at 1418.
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offers no alternative explanation—let alone a persuasive one—for how a
common-law waiver doctrine could qualify as a statutory defect.
Thus, even assuming Weaver held that waiver-based remands fall
within § 1447(c) as removal defects, that holding fares no better under en
banc scrutiny.
III
Weaver’s conclusion that waiver-based remand orders are
unreviewable is untenable. We therefore overrule Weaver and hold that
waiver through state-court participation is neither jurisdictional nor a
removal defect under § 1447(c). It thus falls outside § 1447(d)’s bar on
appellate review.
The parties raise additional issues on appeal.73 But our central task was
to correct the flawed Weaver precedent—a task only this en banc court could
undertake. Having done so, we RETURN this case to the original panel—
now assured of its appellate jurisdiction—to resolve the remaining issues.
_____________________
73
These include whether the parties are diverse and whether the district court
properly found waiver.
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James C. Ho, Circuit Judge, joined by Higginson, Circuit Judge,
concurring:
I concur. I write separately to note that our decision today rightly
reaffirms a basic principle of en banc rehearing—namely, that we need not
decide every issue en banc, but may instead leave non-en banc worthy issues
for the original panel to address. See ante, at 18 (“we RETURN this case to
the original panel . . . to resolve the remaining issues”).
In so doing, we unanimously reject the occasional suggestion that our
en banc court somehow has an “absolute duty to hear and decide” every
issue presented in an appeal. But see, e.g., Comer v. Murphy Oil USA, 607 F.3d
1049, 1061 (5th Cir. 2010) (Dennis, J., dissenting) (asserting such a duty).
As a leading treatise observes, “[a] case that involves a question of
exceptional importance can also involve questions of less general
importance.” 16AA Wright & Miller, Federal Practice and Procedure
§ 3986.3 (5th ed.). When that happens, “the court may conclude . . . that
only some of the issues in the case warrant en banc consideration.” Id. See,
e.g., Asherman v. Meachum, 957 F.2d 978, 983 (2nd Cir. 1992) (“Obviously,
judicial resources are needlessly used if all thirteen members of this in banc
court are obliged to consider issues that can be expeditiously resolved by a
panel of three judges. The possibility that the panel’s resolution of the
remaining issues would precipitate renewed in banc consideration is too
remote to be taken seriously.”); United States v. Padilla, 415 F.3d 211, 217
(1st Cir. 2005) (“a circumscription of the issues to be considered is well
within the discretion of the en banc court”); Keohane v. Fla. Dep’t of Corr.
Sec’y, 981 F.3d 994, 996 (11th Cir. 2020) (Pryor, C.J., statement respecting
the denial of rehearing en banc) (“[W]e and our sister circuits have said again
and again that the ‘heavy artillery’ of en banc review should be used rarely.”).
I agree and accordingly concur.
19