Powerex Corp. v. Reliant Energy Services, Inc.

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

POWEREX CORP. v. RELIANT ENERGY SERVICES,

INC., ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 05–85. Argued April 16, 2007—Decided June 18, 2007

Plaintiffs-respondents filed state-court suits alleging that various com

panies in California’s energy market had conspired to fix prices in

violation of state law. Some of the defendants filed cross-claims seek

ing indemnity from, inter alios, two United States Government agen

cies (BPA and WAPA); a Canadian corporation (BC Hydro) wholly

owned by British Columbia and thus a “foreign state” under the For

eign Sovereign Immunities Act of 1976 (FSIA); and petitioner Pow

erex, a wholly owned subsidiary of BC Hydro. The cross-defendants

removed the entire case to federal court, with BC Hydro and peti

tioner relying on the FSIA. Plaintiffs-respondents moved to remand,

arguing that petitioner was not a foreign state and that the cross-

claims against BPA, WAPA, and BC Hydro were barred by sovereign

immunity. The District Court agreed and remanded. As relevant

here, petitioner appealed, arguing that it was a foreign sovereign un

der the FSIA, but plaintiffs-respondents rejoined that the appeal was

jurisdictionally barred by 28 U. S. C. §1447(d), which provides that

“[a]n order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise.” The Ninth Cir

cuit held that §1447(d) did not preclude it from reviewing substantive

issues of law that preceded the remand order, but affirmed the hold

ing as to petitioner’s foreign-state status.

Held: Section 1447(d) bars appellate consideration of petitioner’s claim

that it is a foreign state for FSIA purposes. Pp. 3–14.

(a) Appellate courts’ authority to review district-court orders re

manding removed cases to state court is substantially limited by

statute. Section 1447(d) is read in pari materia with §1447(c), so that

only remands based on the grounds specified in the latter are

2 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

Syllabus

shielded by the review bar mandated by the former. Thermtron

Products, Inc. v. Hermansdorfer, 423 U. S. 336, 345–346. For pur

poses of this case, it is assumed that the grounds specified in §1447(c)

are lack of subject-matter jurisdiction and defects in removal proce

dure. Cf. Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 711–712.

Given the proceedings below, review of the remand order is barred

only if it was based on lack of subject-matter jurisdiction. Pp. 3–5.

(b) Nothing in §1447(c)’s text supports the claim that a case cannot

be remanded for lack of subject-matter jurisdiction within the mean

ing of that provision if the case was properly removed in the first in

stance. Indeed, statutory history conclusively refutes the argument

that §1447(c) is implicitly limited in such a manner. When a district

court remands a properly removed case because it nonetheless lacks

subject-matter jurisdiction, the remand is covered by §1447(c) and

shielded from review by §1447(d). Pp. 5–7.

(c) The District Court relied upon a ground that is colorably charac

terized as subject-matter jurisdiction and so §1447(d) bars appellate

review. As an initial matter, it is clear from the record that the court

was purporting to remand for lack of subject-matter jurisdiction.

Even assuming that §1447(d) permits appellate courts to look behind

a district court’s characterization of the basis for the remand, such

review is hereby limited to ascertaining whether the characterization

was colorable. In this case, the only plausible explanation of the Dis

trict Court’s remand was that it believed that it lacked the power to

adjudicate the claims against petitioner once it had determined that

petitioner was not a foreign state and that the other cross-defendants

had sovereign immunity. It is unnecessary to determine whether

that belief was correct; it was at least debatable. Petitioner contends

instead that the District Court was actually remanding based on

Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 357, which authorizes

remand when a district court declines to exercise supplemental juris

diction. This is implausible. The District Court never mentioned the

possibility of supplemental jurisdiction, and petitioner does not ap

pear to have argued that the claims against it could be retained

based on supplemental jurisdiction. Pp. 7–10.

(d) The Ninth Circuit held that §1447(d) does not preclude review

ing a district court’s substantive determinations that precede a re

mand order, a holding that appears to be premised on Waco v. United

States Fidelity & Guaranty Co., 293 U. S. 140. Waco, however, does

not permit an appeal when, as here, there is no order separate from

the unreviewable remand order. Pp. 10–11.

(e) Petitioner’s contention that Congress did not intend §1447(d) to

govern suits removed under the FSIA is flatly refuted by this Court’s

longstanding precedent that “[a]bsent a clear statutory command to

Cite as: 551 U. S. ____ (2007) 3

Syllabus

the contrary, [the Court] assume[s] that Congress is ‘aware of the

universality of th[e] practice’ of denying appellate review of remand

orders when Congress creates a new ground for removal.” Things

Remembered, Inc. v. Petrarca, 516 U. S. 124, 128. Pp. 12–13.

391 F. 3d 1011, vacated in part and remanded.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined.

KENNEDY, J., filed a concurring opinion, in which ALITO, J., joined.

BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.

Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–85

_________________

POWEREX CORP., PETITIONER v. RELIANT ENERGY

SERVICES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2007]

JUSTICE SCALIA delivered the opinion of the Court.

We granted certiorari to decide whether, under the

Foreign Sovereign Immunities Act of 1976 (FSIA), peti

tioner is an “organ of a foreign state or political subdivi

sion thereof.” 28 U. S. C. §1603(b)(2). When we granted

certiorari, however, we asked the parties also to address

whether the Ninth Circuit had appellate jurisdiction in

light of 28 U. S. C. §1447(d).

I

The procedural history of this case is long and compli

cated; we recount only what is necessary to resolve the

writ before us. The State of California, along with some

private and corporate citizens (hereinafter collectively

referred to as plaintiffs-respondents), filed suits in Cali

fornia state courts against various companies in the Cali

fornia energy market, alleging that they had conspired to

fix prices in violation of California law. Some of those

defendants, in turn, filed cross-claims seeking indemnity

from, inter alios, the Bonneville Power Administration

(BPA), the Western Area Power Administration (WAPA),

the British Columbia Hydro and Power Authority (BC

2 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

Opinion of the Court

Hydro), and petitioner Powerex (we shall sometimes refer

to these entities collectively as the cross-defendants). BPA

and WAPA are agencies of the United States Government.

BC Hydro is a crown corporation of the Canadian Province

of British Columbia that is wholly owned by the Province

and that all parties agree constitutes a “foreign state” for

purposes of the FSIA. See §1603. Petitioner, also a Cana

dian corporation, is a wholly owned subsidiary of BC

Hydro.

The cross-defendants removed the entire case to federal

court. BC Hydro and petitioner both relied on §1441(d),

which permits a “foreign state,” as defined by §1603(a) of

the FSIA, to remove civil actions brought against it in

state court. BPA and WAPA invoked §1442(a), authoriz

ing removal by federal agencies. Plaintiffs-respondents

moved to remand, arguing that petitioner was not a for

eign state, and that the cross-claims against BPA, WAPA,

and BC Hydro were barred by sovereign immunity. Peti

tioner opposed remand on the ground that it was a foreign

state under the FSIA; the other cross-defendants opposed

remand on the ground that their sovereign immunity

entitled them to be dismissed from the action outright.

The District Court initially concluded (we assume cor

rectly) that §1442(a) entitled BPA and WAPA to remove

the entire case and that BC Hydro was similarly entitled

under §1441(d). App. to Pet. for Cert. 20a. It thus be

lieved that whether the case should be remanded “hinge[d

on its] jurisdictional authority to hear the removed claims,

not whether the actions were properly removed in the first

instance.” Ibid. The District Court held that petitioner

did not qualify as a foreign sovereign under the FSIA. Id.,

at 33a–38a. It also decided that BC Hydro enjoyed sover

eign immunity under the FSIA. Id., at 21a–33a. And it

concluded that BPA and WAPA were immune from suit in

state court, which the court believed deprived it of juris

diction over the claims against those agencies. Id., at 38a–

Cite as: 551 U. S. ____ (2007) 3

Opinion of the Court

44a. Having reached these conclusions, the District Court

remanded the entire case. Id., at 44a.

Petitioner appealed to the Court of Appeals for the

Ninth Circuit, arguing that it was a foreign sovereign

under the FSIA. BPA and WAPA (but not BC Hydro) also

appealed, asserting that the District Court, before re

manding the case, should have dismissed them from the

action in light of their sovereign immunity. Plaintiffs-

respondents, for their part, rejoined that both appeals

were jurisdictionally barred by §1447(d) and that the

District Court had not erred in any event. The Ninth

Circuit rejected the invocation of §1447(d), holding that

that provision did not preclude it from reviewing substan

tive issues of law that preceded the remand order. Cali

fornia v. NRG Energy Inc., 391 F. 3d 1011, 1022–1023

(2004). It also found that the District Court had jurisdic

tion over the case because BPA, WAPA, and BC Hydro

properly removed the entire action. Id., at 1023. Turning

to the merits, the Ninth Circuit affirmed the holding that

petitioner was not a “foreign state” for purposes of the

FSIA. Id., at 1025–1026. It also upheld the District

Court’s conclusion that BPA, WAPA, and BC Hydro re

tained sovereign immunity, id., at 1023–1025, but re

versed its decision not to dismiss BPA and WAPA before

remanding, id., at 1026–1027.

Petitioner sought certiorari review of the Ninth Circuit’s

determination that it was not an “organ of a foreign state

or political subdivision thereof” under §1603(b)(2). We

granted certiorari on this question, but asked the parties

to address in addition whether the Ninth Circuit had

jurisdiction over petitioner’s appeal notwithstanding

§1447(d). 549 U. S. ____ (2007).

II

The authority of appellate courts to review district-court

orders remanding removed cases to state court is substan

4 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

Opinion of the Court

tially limited by statute. Title 28 U. S. C. §1447(d) pro

vides (with an exception for certain civil rights cases) that

“[a]n order remanding a case to the State court from which

it was removed is not reviewable on appeal or otherwise.”

Determining whether the Ninth Circuit was permitted to

review the District Court’s remand is, alas, not as easy as

one would expect from a mere reading of this text, for we

have interpreted §1447(d) to cover less than its words

alone suggest. In Thermtron Products, Inc. v. Hermans

dorfer, 423 U. S. 336, 345–346 (1976), we held that

§1447(d) should be read in pari materia with §1447(c), so

that only remands based on the grounds specified in the

latter are shielded by the bar on review mandated by the

former. At the time of Thermtron, §1447(c) stated in

relevant part:

“ ‘If at any time before final judgment it appears that

the case was removed improvidently and without ju

risdiction, the district court shall remand the case.’ ”

Id., at 342.

Consequently, Thermtron limited §1447(d)’s application to

such remands. Id., at 346. In 1988, Congress amended

§1447(c) in relevant part as follows:

“A motion to remand the case on the basis of any de

fect in removal procedure must be made within 30

days after the filing of the notice of removal under [28

U. S. C. §]1446(a). If at any time before final judg

ment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded.”

§1016(c)(1), 102 Stat. 4670.

When that version of §1447(c) was in effect, we thus inter

preted §1447(d) to preclude review only of remands for

lack of subject-matter jurisdiction and for defects in re

moval procedure. See Quackenbush v. Allstate Ins. Co.,

517 U. S. 706, 711–712 (1996); Things Remembered, Inc. v.

Cite as: 551 U. S. ____ (2007) 5

Opinion of the Court

Petrarca, 516 U. S. 124, 127–128 (1995).

Although §1447(c) was amended yet again in 1996, 110

Stat. 3022, we will assume for purposes of this case that

the amendment was immaterial to Thermtron’s gloss on

§1447(d), so that the prohibition on appellate review re

mains limited to remands based on the grounds specified

in Quackenbush. We agree with petitioner that the re

mand order was not based on a defect in removal proce

dure, so on the foregoing interpretation of Thermtron the

remand is immunized from review only if it was based on

a lack of subject-matter jurisdiction.

A

The principal submission of the Solicitor General and

petitioner is that the District Court’s remand order was

not based on a lack of “subject matter jurisdiction” within

the meaning of §1447(c) because that term is properly

interpreted to cover only “a defect in subject matter juris

diction at the time of removal that rendered the removal

itself jurisdictionally improper.” Brief for United States as

Amicus Curiae 8; see also id., at 8–11; Brief for Petitioner

42–45. Under this interpretation, the District Court’s

remand order was not based on a defect in subject-matter

jurisdiction for purposes of §1447(c), since the cross-

defendants other than petitioner were statutorily author

ized to remove the whole case in light of their sovereign

status. The Ninth Circuit appears to have relied, at least

in part, on this rationale. See 391 F. 3d, at 1023.

We reject this narrowing construction of §1447(c)’s

unqualified authorization of remands for lack of “subject

matter jurisdiction.” Nothing in the text of §1447(c) sup

ports the proposition that a remand for lack of subject-

matter jurisdiction is not covered so long as the case was

properly removed in the first instance. Petitioner and the

Solicitor General do not seriously dispute the absence of

an explicit textual limitation. Instead, relying on the

6 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

Opinion of the Court

statutory history of §1447(c), they make a three-step

argument why the provision is implicitly limited in this

manner. First, they note that the pre-1988 version of

§1447(c) mandated remand “[i]f at any time before final

judgment it appear[ed] that the case was removed im

providently and without jurisdiction,” 28 U. S. C. §1447(c)

(1982 ed.). That version, obviously, authorized remand

only for cases that were removed improperly. Second, they

contend that the purpose of the 1988 amendment was to

impose a time limit for raising nonjurisdictional objections

to removal, a contention that is certainly plausible in light

of the structure of the amended provision:

“A motion to remand the case on the basis of any de

fect in removal procedure must be made within 30

days after the filing of the notice of removal under

section 1446(a). If at any time before final judgment

it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded.” §1447(c)

(1988 ed.).

Finally, they conclude that since the purpose of the

amendment was to alter the timing rules, there is no

reason to think that Congress broadened the scope of

§1447(c) to authorize the remand of cases that had been

properly removed. The language “lacks subject matter

jurisdiction,” which was newly added to §1447(c), must be

construed to cover only cases in which removal was juris

dictionally improper at the outset.

But the very statutory history upon which this creative

argument relies conclusively refutes it. The same section

of the public law that amended §1447(c) to include the

phrase “subject matter jurisdiction” also created a new

§1447(e). See §1016(c), 102 Stat. 4670. Section 1447(e),

which remains on the books, states:

“If after removal the plaintiff seeks to join additional

defendants whose joinder would destroy subject mat

Cite as: 551 U. S. ____ (2007) 7

Opinion of the Court

ter jurisdiction, the court may deny joinder, or permit

joinder and remand the action to the State court.”

This unambiguously demonstrates that a case can be

properly removed and yet suffer from a failing in subject-

matter jurisdiction that requires remand. A standard

principle of statutory construction provides that identical

words and phrases within the same statute should nor

mally be given the same meaning. See, e.g., IBP, Inc. v.

Alvarez, 546 U. S. 21, 34 (2005). That maxim is doubly

appropriate here, since the phrase “subject matter juris

diction” was inserted into §1447(c) and §1447(e) at the

same time. There is no reason to believe that the new

language in the former provision, unlike the new language

simultaneously inserted two subsections later, covers only

cases in which removal itself was jurisdictionally im

proper. We hold that when a district court remands a

properly removed case because it nonetheless lacks sub

ject-matter jurisdiction, the remand is covered by §1447(c)

and thus shielded from review by §1447(d).1

B

That holding requires us to determine whether the

ground for the District Court’s remand in the present case

was lack of subject-matter jurisdiction. As an initial

matter, it is quite clear that the District Court was pur

porting to remand on that ground. The heading of the

discussion section of the remand order is entitled “Subject

——————

1 To be clear, we do not suggest that the question whether removal is

proper is always different from the question whether the district court

has subject-matter jurisdiction, for the two are often identical in light of

the general rule that postremoval events do not deprive federal courts

of subject-matter jurisdiction. See, e.g., Wisconsin Dept. of Corrections

v. Schacht, 524 U. S. 381, 391 (1998). We merely hold that when there

is a divergence, such that a district court lacks subject-matter jurisdic

tion to hear a claim that was properly removed, the consequent remand

is authorized by §1447(c) and appellate review is barred by §1447(d).

8 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

Opinion of the Court

Matter Jurisdiction Over the Removed Actions.” App. to

Pet. for Cert. 20a. And the District Court explicitly stated

that the remand “issue hinges . . . on the Court’s jurisdic

tional authority to hear the removed claims.” Ibid. Were

any doubt remaining, it is surely eliminated by the Dis

trict Court’s order denying a stay of the remand, which

repeatedly stated that a lack of subject-matter jurisdiction

required remand pursuant to §1447(c). See App. 281–286.

For some Members of this Court, the foregoing conclu

sion that the District Court purported to remand for lack

of subject-matter jurisdiction is alone enough to bar re

view under §1447(d). See Osborn v. Haley, 549 U. S. ___,

___ (2007) (slip op., at 2–3) (SCALIA, J., joined by THOMAS,

J., dissenting). Even assuming, however, that §1447(d)

permits appellate courts to look behind the district court’s

characterization, see Kircher v. Putnam Funds Trust, 547

U. S. ___, ___, n. 9 (2006) (slip op., at 7, n. 9) (reserving the

question), we conclude that appellate review is barred in

this case.2 There is only one plausible explanation of what

legal ground the District Court actually relied upon for its

remand in the present case. As contended by plaintiffs-

respondents, it was the court’s lack of power to adjudicate

the claims against petitioner once it concluded both that

petitioner was not a foreign state capable of independently

removing and that the claims against the other removing

cross-defendants were barred by sovereign immunity.

Brief for Plaintiffs-Respondents 17–21, 25–26. Though we

have not passed on the question whether, when sovereign

immunity bars the claims against the only parties capable

——————

2 The Court’s opinion in Osborn v. Haley, 549 U. S. ___ (2007), had

nothing to say about the scope of review that is permissible under

§1447(d), since it held that §1447(d) was displaced in its entirety by 28

U. S. C. §2679(d)(2). See 549 U. S., at ___ (slip op., at 15–16) (reasoning

that, of the two forum-determining provisions—§1447(d), the generally

applicable section, and §2679(d)(2), a special prescription governing

Westfall Act cases—“only one can prevail”).

Cite as: 551 U. S. ____ (2007) 9

Opinion of the Court

of removing the case, subject-matter jurisdiction exists to

entertain the remaining claims, cf. n. 3, infra, the point is

certainly debatable. And we conclude that review of the

District Court’s characterization of its remand as resting

upon lack of subject-matter jurisdiction, to the extent it is

permissible at all, should be limited to confirming that

that characterization was colorable. Lengthy appellate

disputes about whether an arguable jurisdictional ground

invoked by the district court was properly such would

frustrate the purpose of §1447(d) quite as much as deter

mining whether the factfinding underlying that invocation

was correct. See Kircher, supra, at ___ (slip op., at 2–3)

(SCALIA, J., concurring in part and concurring in judg

ment). Moreover, the line between misclassifying a

ground as subject-matter jurisdiction and misapplying a

proper ground of subject-matter jurisdiction is sometimes

elusively thin. To decide the present case, we need not

pass on whether §1447(d) permits appellate review of a

district-court remand order that dresses in jurisdictional

clothing a patently nonjurisdictional ground (such as the

docket congestion invoked by the District Court in Therm

tron, 423 U. S., at 344). We hold that when, as here, the

District Court relied upon a ground that is colorably char

acterized as subject-matter jurisdiction, appellate review

is barred by §1447(d).

Petitioner puts forward another explanation for the

remand, which we find implausible. Petitioner claims

that, because the entire case was properly removed, the

District Court had the discretion to invoke a form of sup

plemental jurisdiction to hear the claims against it, and

that its remand rested upon the decision not to exercise

that discretion. In short, petitioner contends that the

District Court was actually relying on Carnegie-Mellon

Univ. v. Cohill, 484 U. S. 343, 357 (1988), which author

ized district courts to remand removed state claims when

they decide not to exercise supplemental jurisdiction.

10 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

Opinion of the Court

Brief for Petitioner 45–48; Reply Brief for Petitioner 16–

20. It is far from clear, to begin with, (1) that supplemen

tal jurisdiction was even available in the circumstances of

this case;3 and (2) that when discretionary supplemental

jurisdiction is declined the remand is not based on lack of

subject-matter jurisdiction for purposes of §1447(c) and

§1447(d).4 Assuming those points, however, there is no

reason to believe that the District Court’s remand was

actually based on this unexplained discretionary decision.

The District Court itself never mentioned the possibility of

supplemental jurisdiction, neither in its original decision,

see App. to Pet. for Cert. 20–44, nor in its order denying

petitioner’s motion to stay the remand pending appeal,

App. 281–286. To the contrary, as described above, it

relied upon lack of subject-matter jurisdiction—which, in

petitioner’s view of things (but see n. 4, this page) would

not include a Cohill remand. Moreover, it does not appear

from the record that petitioner ever even argued to the

District Court that supplemental jurisdiction was a basis

for retaining the claims against it. There is, in short, no

reason to believe that an unmentioned nonexercise of

Cohill discretion was the basis for the remand.

C

Part of the reason why the Ninth Circuit concluded it

had appellate jurisdiction is a legal theory quite different

——————

3 Petitioner provides no authority from this Court supporting the

proposition that a district court presiding over a multiparty removed

case can invoke supplemental jurisdiction to hear claims against a

party that cannot independently remove when the claims against the

only parties authorized to remove are barred by sovereign immunity.

4 We have never passed on whether Cohill remands are subject-

matter jurisdictional for purposes of post-1988 versions of §1447(c) and

§1447(d). See Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 129–

130 (1995) (KENNEDY, J., concurring) (noting that the question is open);

cf. Cohill, 484 U. S., at 355, n. 11 (discussing the pre-1988 version of

§1447(c)).

Cite as: 551 U. S. ____ (2007) 11

Opinion of the Court

from those discussed and rejected above. Petitioner, along

with the other appellants, convinced the court to apply

Circuit precedent holding that §1447(d) does not preclude

review of a district court’s merits determinations that

precede the remand. See 391 F. 3d, at 1023 (citing, inter

alia, Pelleport Investors, Inc. v. Budco Quality Theatres,

Inc., 741 F. 2d 273, 276–277 (CA9 1984)). Petitioner has

not completely abandoned this argument before us, see

Brief for Petitioner 50, and it is in any event desirable to

address this aspect of the Ninth Circuit’s judgment.

The line of Ninth Circuit jurisprudence upon which

petitioner relied appears to be invoking our decision in

Waco v. United States Fidelity & Guaranty Co., 293 U. S.

140 (1934). There the District Court, in a single decree,

had entered one order dismissing a cross-complaint

against one party, and another order remanding because

there was no diversity of citizenship in light of the dis

missal. Id., at 142. We held that appellate jurisdiction

existed to review the order of dismissal, although we

repeatedly cautioned that the remand order itself could

not be set aside. Id., at 143–144. The Ninth Circuit’s

application of Waco to petitioner’s appeal was mistaken.

As we reiterated in Kircher, see 547 U. S., at ___, n. 13

(slip op., at 11, n. 13), Waco does not permit an appeal

when there is no order separate from the unreviewable

remand order. Here petitioner can point to no District

Court order, separate from the remand, to which it objects

and to which the issue of its foreign sovereign status is

material. Thus, petitioner’s invocation of Waco amounts

to a request for one of two impermissible outcomes: an

advisory opinion as to its FSIA status that will not affect

any order of the District Court, or a reversal of the remand

order. Waco did not, and could not, authorize either form

of judicial relief.

12 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

Opinion of the Court

D

Finally, petitioner contends, with no textual support,

that §1447(d) is simply inapplicable to a suit removed

under the FSIA. It asserts that Ҥ1447(d) must yield

because Congress could not have intended to grant district

judges irrevocable authority to decide questions with such

sensitive foreign-relations implications.” Brief for Peti

tioner 49. We will not ignore a clear jurisdictional statute

in reliance upon supposition of what Congress really

wanted. See Connecticut Nat. Bank v. Germain, 503 U. S.

249, 253–254 (1992). Petitioner’s divination of congres

sional intent is flatly refuted by longstanding precedent:

“Section 1447(d) applies ‘not only to remand orders

made in suits removed under [the general removal

statute], but to orders of remand made in cases re

moved under any other statutes, as well.’ . . . Absent

a clear statutory command to the contrary, we assume

that Congress is ‘aware of the universality of th[e]

practice’ of denying appellate review of remand orders

when Congress creates a new ground for removal.”

Things Remembered, 516 U. S., at 128 (quoting United

States v. Rice, 327 U. S. 742, 752 (1946); emphasis de

leted and alterations in original).

Congress has repeatedly demonstrated its readiness to

exempt particular classes of remand orders from §1447(d)

when it wishes—both within the text of §1447(d) itself

(which exempts civil rights cases removed pursuant to 28

U. S. C. §1443), and in separate statutes, see, e.g., 12

U. S. C. §1441a(l)(3)(c), §1819(b)(2)(C); 25 U. S. C. §487(d).

We are well aware that §1447(d)’s immunization of

erroneous remands has undesirable consequences in the

FSIA context. A foreign sovereign defendant whose case is

wrongly remanded is denied not only the federal forum to

which it is entitled (as befalls all remanded parties with

meritorious appeals barred by §1447(d)), but also certain

Cite as: 551 U. S. ____ (2007) 13

Opinion of the Court

procedural rights that the FSIA specifically provides

foreign sovereigns only in federal court (such as the right

to a bench trial, see 28 U. S. C. §1330(a); §1441(d)). But

whether that special concern outweighs §1447(d)’s general

interest in avoiding prolonged litigation on threshold non-

merits questions, see Kircher, supra, at ___ (slip op., at 5),

is a policy debate that belongs in the halls of Congress, not

in the hearing room of this Court. As far as the Third

Branch is concerned, what the text of §1447(d) indisputa

bly does prevails over what it ought to have done.5

——————

5 The dissent’s belief that there is an implicit FSIA exception to

§1447(d), see post, at 1–6 (opinion of BREYER, J.), rests almost exclu

sively on our recent decision in Osborn. The dissent reads Osborn to

stand for the proposition that any “conflict” between a specific, later-

enacted statute and §1447(d) should be resolved in favor of the former.

Post, at 2–3. The reason why the dissent is forced to the parenthetical

admission that “Osborn did not say as much,” post, at 2, is because the

dissent drastically overreads the case. Osborn held only that §1447(d)

was trumped by the Westfall Act’s explicit provision that removal was

conclusive upon the Attorney General’s certification: as between “the

two antishuttling commands,” the Court said, “only one can prevail.”

549 U. S., at ___ (slip op., at 16). The opinion was quite clear that the

only statutory rivalry with which it was concerned was dueling “an

tishuttling commands”: “Only in the extraordinary case in which

Congress has ordered the intercourt shuttle to travel just one way—

from state to federal court—does today’s decision hold sway.” Ibid.

That is why Osborn repeatedly emphasized that Westfall Act certifica

tion is “ ‘conclusiv[e] . . . for purposes of removal,’ ” id., at ___ (slip op., at

13, 14), an emphasis that the dissent essentially ignores, post, at 2–3.

Osborn is no license for courts to assume the legislative role by char

acterizing the consequences of §1447(d)’s bar on appellate review as

creating a conflict, leaving it to judges to suppress that provision when

they think Congress undervalued or overlooked those consequences.

The dissent renders a quintessential policy judgment in concluding that

appellate “delay is necessary, indeed, crucial,” post, at 4, when the

rights of a foreign sovereign are at stake. We have no idea whether this

is a wise balancing of the various values at issue here. We are confi

dent, however, that the dissent is wrong to think that it would improve

the “law in this democracy,” post, at 6, for judges to accept the lawmak

ing power that the dissent dangles before them.

14 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

Opinion of the Court

* * *

Section 1447(d) reflects Congress’s longstanding “policy

of not permitting interruption of the litigation of the mer

its of a removed case by prolonged litigation of questions of

jurisdiction of the district court to which the cause is

removed.” Rice, supra, at 751. Appellate courts must take

that jurisdictional prescription seriously, however press

ing the merits of the appeal might seem. We hold that

§1447(d) bars appellate consideration of petitioner’s claim

that it is a foreign state for purposes of the FSIA. We

therefore vacate in part the judgment of the Ninth Circuit

and remand the case with instructions to dismiss peti

tioner’s appeal for want of jurisdiction.

It is so ordered.

Cite as: 551 U. S. ____ (2007) 1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–85

_________________

POWEREX CORP., PETITIONER v. RELIANT ENERGY

SERVICES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2007]

JUSTICE KENNEDY, with whom JUSTICE ALITO joins,

concurring.

When Congress acted through the Foreign Sovereign

Immunities Act of 1976, 28 U. S. C. §1602 et seq. (2000 ed.

and Supp. IV), to codify certain protections and immuni

ties for foreign sovereigns and the entities of those sover

eigns, it no doubt considered its action to be of importance

for maintaining a proper relationship with other nations.

And so it is troubling to be required to issue a decision

that might well frustrate a policy of importance to our own

Government.

As the Court explains, however, the structure and word

ing of §1447(d) (2000 ed.) leave us no other choice. There

is no latitude for us to reach a different result. If it is true

that the statute as written and the judgment we issue

today are inconsistent with the intent and purpose Con

gress wanted to express, then the immediate jeopardy that

foreign sovereign entities will now face should justify

urgent legislative action to enact the necessary statutory

revisions.

Cite as: 551 U. S. ____ (2007) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 05–85

_________________

POWEREX CORP., PETITIONER v. RELIANT ENERGY

SERVICES, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 18, 2007]

JUSTICE BREYER, with whom JUSTICE STEVENS, joins,

dissenting.

Unlike the Court, I believe the District Court’s remand

order is reviewable on appeal. And, reviewing the decision

below, I would hold that Powerex is an organ of the Gov

ernment of British Columbia.

I

The majority concludes that 28 U. S. C. §1447(d) took

from the Ninth Circuit the power to review the District

Court’s remand decision. The statutory argument is a

strong one. Section 1447(c) says that, “[i]f at any time

before final judgment it appears that the district court

lacks subject matter jurisdiction, the case shall be re

manded” to state court; and §1447(d), referring to subsec

tion (c), adds that a district court “order remanding a case

to the State court from which it was removed is not re

viewable on appeal or otherwise.” Thermtron Products,

Inc. v. Hermansdorfer, 423 U. S. 336, 345–346 (1976).

Nonetheless this Court has found exceptions to §1447’s

seemingly blanket prohibition. See, e.g., id., at 350–352;

Osborn v. Haley, 549 U. S. ___, ___ (2007) (slip op. at 12–

16). In doing so, the Court has recognized that even a

statute silent on the subject can create an important

2 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

BREYER, J., dissenting

conflict with §1447(d)’s “no appellate review” instruction.

And where that is so, we have, in fact, resolved the conflict

by reading a later more specific statute as creating an

implicit exception to §1447(d) (though Osborn did not say

as much). Id., at___ (slip op., at 15–16).

The subject matter of the Foreign Sovereign Immunity

Act of 1976’s removal provision, foreign sovereigns, is

special. And the FSIA creates serious conflicts with

§1447(d)’s “no appellate review” instruction. The FSIA is

later enacted and subject-matter specific. Consequently, I

would read into the FSIA a similar exception to §1447(d),

applicable here.

Osborn illustrates my starting point: a conflict with

§1447(d). The Westfall Act, the specific statute at issue in

that case, provides for removal to federal court of a state-

court lawsuit brought against a federal employee where

the state-court lawsuit attacks employee actions within

the scope of federal employment. 28 U. S. C. §§2679(d)(2)–

(3). The Westfall Act authorizes the Attorney General to

certify that the employee’s actions at issue fall within the

scope of federal employment. And the Westfall Act says

that the certification “conclusively establish[es]” that fact

for removal purposes. §§2679(d)(1)–(2). In Osborn, we

pointed out that §1447(d) would permit a district court,

without appellate review, to remand in the face of a con

trary Attorney General certification. 549 U. S., at ___ (slip

op., at 14). Doing so, without appellate review, would

thereby permit the district court to substitute its own

judgment (as to whether the employee’s actions were

within the federal “scope of employment”) for that of the

Attorney General. And the district court would thereby

have the unreviewable power to make the Attorney Gen

eral’s determination nonconclusive, contrary to what the

statute says. Because §1447(d), if applied, would render

this statutory instruction “weightless,” we found a conflict

with §1447(d). Ibid. And we resolved the conflict in favor

Cite as: 551 U. S. ____ (2007) 3

BREYER, J., dissenting

of the later enacted, more specific Westfall Act. Id., at ___

(slip op., at 15).

A similarly strong conflict exists here, albeit not with a

separate removal provision, but rather with a comprehen

sive statutory scheme. To understand how that is so,

imagine a case not now before us. Imagine that a private

plaintiff brings a lawsuit in state court against a noncom

mercial division of a foreign nation’s government, say, a

branch of that nation’s defense ministry or, for that mat

ter, against the foreign nation itself. The FSIA provides a

specific guarantee that such a suit cannot continue (except

in certain instances that, for purposes of my example, are

not relevant). 28 U. S. C. §§1602–1605. It achieves this

objective by authorizing the foreign government to remove

the case to federal court where a federal judge will deter

mine if the defendant is indeed a foreign government and,

if so, dismiss the case. §1441(d).

What happens if the foreign sovereign removes the case

to federal court only to have the federal judge mistakenly

remand the case to state court? As in an ordinary case,

the lawsuit may well continue in the state tribunal. But,

if so, unlike the ordinary case (say, a wrongly remanded

diversity or “arising under” case) but like Osborn, the

removing party will have lost considerably more than a

choice of forum. The removing party will have lost that

which a different portion of the special statute sought to

provide, namely, the immunity from suit that the FSIA

sought to assure.

That assurance forms a separate and central FSIA

objective. The very purpose of sovereign immunity is to

avoid subjecting a foreign sovereign to the rigors and

“inconvenience of suit.” Dole Food Co. v. Patrickson, 538

U. S. 468, 479 (2003). In such a case, a state court likely

will feel bound by the federal court’s prior judgment on the

lack of immunity (under state law-of-the-case doctrine)

and this Court’s review (of an adverse state-court judg

4 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

BREYER, J., dissenting

ment) will come too late. In such a case, the FSIA’s basic

objective (unrelated to choice of forum) will have become

“weightless.” Osborn, supra, at ___ (slip op., at 14).

It is difficult to see how this conflict between the FSIA’s

basic objective and §1447(d) is any less serious than the

conflict at issue in Osborn. The statutory objective here,

harmonious relations with foreign sovereigns, is more, not

less, important. See Ex parte Peru, 318 U. S. 578, 587

(1943) (exercising original writ to protect sovereign from

erroneous District Court conclusion that it was not im

mune from suit). See also, e.g., Republic of Mexico v.

Hoffman, 324 U. S. 30, 35 (1945); Schooner Exchange v.

McFaddon, 7 Cranch 116 (1812); H. R. Rep. No. 94–1487,

p. 13 (1976) (hereinafter H. R. Rep.) (FSIA intended to

avoid “adverse foreign relations consequences”).

Neither is a §1447(d) exception here likely to undermine

§1447(d)’s basic purpose: avoiding the procedural delay

that an added federal appeal would create. Avoiding that

delay is important in a typical case where only choice of

forum is at issue. But that same delay is necessary, in

deed, crucial, in the special case where a foreign sover

eign’s immunity from suit is at issue. At the same time,

foreign affairs is itself an exceptional topic, with special

risks, special expertise, and special federal authority;

hence, our finding a §1447(d) exception in the FSIA is

unlikely to lead courts to create a series of exceptions

affecting more typical cases. See, e.g., Kircher v. Putnam

Funds Trust, 547 U. S. ___, ___ (2006) (slip op., at 5–6)

(avoidance of delay is §1447(d)’s basic purpose).

Finally, as in Osborn, the FSIA is a specific, later en

acted statute. Cf. Osborn, supra, at ___ (slip op., at 15); see

generally Long Island Care at Home, Ltd. v. Coke, ante, at

___ (slip op., at 10) (where statutory provisions are incon

sistent, “normally the specific governs the general”);

Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384–

385 (1992); Simpson v. United States, 435 U. S. 6, 15

Cite as: 551 U. S. ____ (2007) 5

BREYER, J., dissenting

(1978).

Taken together, these considerations lead me to believe

that, were a foreign noncommercial government entity’s

immunity from suit at issue, the FSIA would conflict with

§1447(d), leading a court properly to read the FSIA as

implicitly creating an exception to §1447(d), and thereby

protecting the sovereign’s right to appeal a wrongful re

mand order.

The removing defendant in this case, of course, is not a

foreign sovereign immune from suit. It is a foreign gov

ernmental entity that acts in a commercial capacity and

consequently is subject to suit. 28 U. S. C. §1605(a)(2).

But the FSIA nonetheless creates an important, though

different, conflict. That conflict arises because a different

FSIA provision says, “[u]pon removal the action shall be

tried by the court without jury.” §1441(d) (emphasis

added); see H. R. Rep., at 33 (“[O]ne effect of removing an

action under the new section 1441(d) will be to extinguish

a demand for a jury trial made in the state court”); S. Rep.

No. 94–1310, p. 32 (1976) (hereinafter S. Rep.) (same). A

wrongful remand would destroy this statutory right. The

state court trial would often proceed with a jury; and it is

questionable whether even this Court could later set aside

an adverse state court judgment for that reason—at least

Congress seems to have thought as much. See H. R. Rep.,

at 33 (“Because the judicial power of the United States

specifically encompasses actions between a State, or the

Citizens thereof, and foreign States, this preemption of

State court [jury trial] procedures in cases involving for

eign sovereigns is clearly constitutional” (emphasis added;

citations and internal quotation marks omitted)); S. Rep.,

at 32 (same).

The conflict is important, this case is special, and we

should resolve it by reading the FSIA as implicitly pre

empting the general application of §1447(d). Indeed, I do

not see how we could read the FSIA differently in this

6 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

BREYER, J., dissenting

respect depending upon whether commercial or non

commercial sovereign activity is at issue. For these rea

sons, I believe that the Ninth Circuit correctly determined

that it possessed legal authority to review the case.

It is true, as the majority states, that Congress has in

other contexts carved out certain removal orders as being

specifically reviewable on appeal. Ante, at 12. The major

ity reads these specific statutes to suggest that had Con

gress intended §1447(d) not to apply in FSIA cases, it

could simply have said so. Ibid. However, in fact, for the

reasons articulated above, I believe that Congress must

have assumed the FSIA overrode §1447. Congress enacted

the FSIA soon after the Court’s decision in Thermtron

Products, 423 U. S., at 345, held that implicit §1447(d)

exceptions might exist. Cf. Osborn, 549 U. S., at ___ (slip

op., at 13–15) (despite statutory silence, reading Westfall

Act as overriding §1447(d)). And, as I have said, the FSIA

would otherwise fail to achieve Congress’ basic objectives.

Context and purpose make clear that few if any members

of Congress could have wanted to block appellate review

here. Were the Court to pay greater attention to statutory

objectives and purposes and less attention to a technical

parsing of language, it might agree. Were it to agree, we

would exercise our interpretive obligation, not “lawmaking

power,” ante, at 13, n. 5, with increased fidelity to the

intention of those to whom our Constitution delegates that

lawmaking power, namely the Congress of the United

States. And, law in this democracy would be all the better

for it.

II

I part company with the Ninth Circuit on the merits.

The Circuit held that the District Court’s remand was

proper because, in its view, Powerex is not “an organ of a

. . . political subdivision” of a “foreign state.” 28 U. S. C.

Cite as: 551 U. S. ____ (2007) 7

BREYER, J., dissenting

§1603(b)(2) (emphasis added). Hence, it is not an “agency

or instrumentality” of a foreign government and falls

outside the scope of the FSIA’s provision authorizing

removal. §1603(a); see generally California v. NRG En

ergy Inc., 391 F. 3d 1011, 1025–1026 (2004).

In my view, however, Powerex is “an organ” of the Prov

ince of British Columbia, a “political subdivision” of Can

ada. The record makes clear that Powerex is a govern

ment-owned and government-operated electric power

distribution company, not meaningfully different from

ordinary municipal electricity distributors, the Tennessee

Valley Authority, or any foreign “nationalized” power

producers and distributors, such as Britain’s former Cen

tral Electricity Generating Board or Electricité de France.

See generally C. Harris, Electricity Markets: Pricing,

Structures, and Economics 15–20 (2006) (summarizing

features of electricity companies in United States and

Europe, among others); J. Nelson, Marginal Cost Pricing

in Practice 3–6, 32, 37 (1964) (summarizing features of

France hydropower industry). See also http://tva.com/

abouttva/index.htm (summarizing general features of

Tennessee Valley Authority) (all Internet materials as

visited June 8, 2007, and available in Clerk of Court’s case

file); Government Corporation Control Act, §101, 59 Stat.

597–598 (describing Tennessee Valley Authority as

“ ‘wholly owned Government Corporation’ ”); Lebron v.

National Railroad Passenger Corporation, 513 U. S. 374,

388–389 (1995) (noting that corporate entities in Govern

ment Corporation Control Act were incorporated by other

government-owned corporations); Dept. of Labor, Bureau

of Labor Statistics, Career Guide to Industries, Utilities,

online at http://www.bls.gov/oco/cg/cgs018.htm (describing

features of public run utilities); G. Rothwell & T. Gómez,

Electricity Economics: Regulation and Deregulation 129–

241 (2003) (comparing electricity markets and industries

in California and various foreign nations).

8 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

BREYER, J., dissenting

Powerex is itself owned and operated by BC Hydro, an

entity that all apparently concede is governmental in

nature. Brief for Respondents 38–40, 42. British Colum

bia’s statutes create BC Hydro as a kind of government

agency to produce water-generated electric power. Power

Measures Act, S. B. C., ch. 40 (1964); App. to Pet. for Cert.

52a, 118a, 163a–169a. BC Hydro has a board of directors,

all of whom are appointed by British Columbia’s govern

ment. Id., at 58a–59a. It is an “agent of the [provincial]

government and its powers may be exercised only as an

agent of the government.” Hydro Power Authority Act,

R. S. B. C. ch. 212, §3(1) (1996). The District Court con

cluded that BC Hydro is, in fact, a foreign sovereign entity

entitled to immunity. 391 F. 3d, at 1024.

British Columbia’s Minister of Energy issued a written

directive ordering that BC Hydro create a subsidiary,

Powerex, to carry out the specialized tasks of exporting

hydro-generated electric power and of importing power,

which it is then to distribute to British Columbia resi

dents. App. 235–239, 250–251, 267. Powerex specifically

carries out these obligations in accordance with various

treaties between Canada and the United States. App.

133–155; App. to Pet. for Cert. 55a; see Treaty Between

the United States of America and Canada Relating to

Cooperative Development of the Water Resources of the

Columbia River Basin, Jan. 17, 1961, [1964] 15 U. S. T.

1555, T.I.A.S. No. 5638, App. to Pet. for Cert. 61a–82a;

Treaty Between Canada and the United States of America

Relating to the Skagit River and Ross Lake, and the Seven

Mile Reservoir on the Pend d’Oreille River, Apr. 2, 1984,

1469 U. N. T. S. 309, T.I.A.S. No. 11088, App. to Pet. for

Cert. 138a–145a); British Columbia-Seattle Agreement

(Mar. 30, 1984), App. 160–171.

Powerex’s board members consist of some of BC Hydro’s

board members and other members whom those members

appoint. App. 233–235. The government’s comptroller

Cite as: 551 U. S. ____ (2007) 9

BREYER, J., dissenting

general reviews Powerex’s financial operations and regu

lates the terms under which it conducts business. Finan

cial Administration Act, R. S. B. C., ch. 138, §§4.1,

8(2)(c)(i), 75, 79.3 (1996) (FAA), Addendum to Brief for

Petitioner 34–36, 40–42 (hereinafter Addendum). British

Columbia’s fiscal control statute refers to Powerex as a

“ ‘government body.’ ” FAA §1, Addendum 31, 33. And

other British Columbia laws refer to its employees as

“ ‘public office holders.’ ” Lobbyists Registration Act,

S. B. C., ch. 42, §1 (2001), Addendum 50. Powerex pays no

income taxes. See Income Tax Act, R. S. C., ch. 1,

§§149(1)(d), (d.2) (5th Supp., 1985), Addendum 45; App. to

Pet. for Cert. 58a; Brief for Petitioner 31. The British

Columbian government, through BC Hydro, has sole

beneficial ownership and control of Powerex. App. 267. If

Powerex earns a profit, that profit must be rebated di

rectly or indirectly to British Columbia’s residents. App.

215, 238. I can find no significant difference between

Powerex and the classical government entities to which I

previously referred. Supra, at ___.

The Ninth Circuit noted that Powerex may earn a profit

and that the Government of British Columbia does not

provide financial support. And the Ninth Circuit thought

these facts made a critical difference. But a well-run

nationalized firm should make a reasonable profit; nor

should it have to borrow from the government itself. See,

e.g., Nelson, supra, at 8–12; Harris, Electricity Markets, at

125, 130–132; Rothwell & Gómez, supra, at 3–4. The

relevant question is not whether Powerex earns a profit

but where does that profit go? Here it does not go to pri

vate shareholders; it goes to the benefit of the public in

payments to the province and reduced electricity prices.

App. 215, 238.

The Ninth Circuit also pointed out that certain provin

cial regulations that apply to other governmental depart

ments do not apply to Powerex. That fact proves little.

10 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.

BREYER, J., dissenting

The Tennessee Valley Authority, which is “perhaps the

best known of the American public corporations,” First

Nat. City Bank v. Banco Para el Comercio Exterior de

Cuba, 462 U. S. 611, 625, n. 15 (1983), is not subject to

certain federal regulations regarding hiring that apply to

other governmental departments. See, e.g., 16 U. S. C.

§831b.

In sum, Powerex is the kind of government entity that

Congress had in mind when it wrote the FSIA’s “commer

cial activit[y]” provisions. See generally 28 U. S. C. §1602

et seq.; H. R. Rep., at 15; S. Rep., at 14; Banco, supra, at

624–625.

For these reasons, I believe we should consider, and

reverse, the Ninth Circuit’s determination. With respect, I

dissent.