Cook v. Wikler

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

3-6-2003

Cook v. Wikler

Precedential or Non-Precedential: Precedential

Docket 02-1340

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PRECEDENTIAL

Filed February 24, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-1340

DEBORAH COOK,

v.

GERALD WIKLER; JOHN PALKO,

JOHN PALKO,

Defendant/Third Party

Plaintiff,

v.

TONKINSON, P.O., Badge No. 708,

Third Party Defendant

POLICE OFFICER TONKINSON,

Appellant.

Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 01-cv-05387)

District Judge: J. Curtis Joyner

Argued: December 3, 2002

Before: ROTH, SMITH and CUDAHY,*

Circuit Judges.

(Filed February 24, 2003)

* Hon. Richard D. Cudahy, United States Court of Appeals for the

Seventh Circuit, sitting by designation.

2

CITY OF PHILADELPHIA LAW DEPT.

Nelson A. Diaz, City Solicitor

Elise M. Bruhl (argued)

Assistant City Solicitor, Appeals

1515 Arch Street, 15th Floor

Philadelphia, PA 19102-1595

Counsel for Appellant

Police Officer Tonkinson

Alan L. Yatvin (argued)

Popper & Yatvin

230 South Broad Street, Suite 503

Philadelphia, PA 19102

Counsel for Appellee

John Palko

Gordon Gelfond

Margolis & Edelstein

6th & Walnut Streets

The Curtis Center, 4th Floor

Philadelphia, PA 19106

Counsel for Gerald Wikler

William E. Averona

Suite 1204

Two Penn Center Plaza

Philadelphia, PA 19102

Counsel for Deborah Cook

OPINION OF THE COURT

SMITH, Circuit Judge:

Appellant in this case is a City of Philadelphia police

officer who seeks to have this Court reverse an Order of the

District Court for the Eastern District of Pennsylvania

remanding this case to the state court in which the

complaint was originally filed. The appellant, Police Officer

Tonkinson, is a third-party defendant brought into this

action through a “Joinder Complaint” filed in state court by

one of the original defendants below, John Palko. Because

3

the District Court interpreted the removal statutes, 28

U.S.C. § 1441, et seq., to prohibit third-party defendants

like Police Officer Tonkinson from removing cases to federal

court, the District Court concluded that the removal “was

improper under § 1441,” and remanded the case to state

court. Because we lack jurisdiction to hear an appeal of a

remand order entered “on the basis of any defect,” 28

U.S.C. § 1447(c) (Supp. 2002), we will dismiss the appeal.

I.

The original plaintiff in this case, Deborah Cook,

commenced this action on September 20, 2000, in the

Court of Common Pleas of Philadelphia County,

Pennsylvania. Ms. Cook alleges that John Palko, the

manager of the apartment building in which she resided,

subjected her to various forms of harassment in September

of 1999, and that Gerald Wikler, the owner of the building,

was negligent in his supervision of Palko. In response to

Ms. Cook’s complaint against him, Mr. Palko counter-

claimed against Ms. Cook and joined Police Officer

Tonkinson, the appellant in this matter, as a third-party

defendant to his counter-claim.

According to appellee Palko’s state “joinder complaint,”1

around 7:00 P.M. on the evening of September 28, 1999,

Palko answered a knock on his apartment door to find

several police officers and Ms. Cook standing in the

hallway. Ms. Cook had evidently called the police to

complain about loud music she alleged was coming from

Mr. Palko’s apartment, which was located below hers. After

investigating the complaint and interviewing Palko, the

police departed shortly thereafter without taking any action.

Within hours, however, Police Officer Tonkinson appeared

and pounded on Palko’s apartment door. Palko alleges that,

without so much as a single question, Police Officer

Tonkinson barged into his apartment, then seized and

assaulted him. Palko alleges that Police Officer Tonkinson

1. Pennsylvania’s Rules of Civil Procedure permit a defendant to join as

an additional defendant any person “liable to the joining party on any

cause of action arising out of the transaction or occurrence . . . upon

which the plaintiff ’s cause of action is based.” Pa. R. Civ. P. 2252(a)(4).

4

conspired with Cook to swear out a “bogus” criminal

complaint against Palko and have him arrested. These

allegations form the basis of Palko’s counter-claim against

Cook and his joinder of Police Officer Tonkinson, which

included counts of assault and battery, false arrest and

imprisonment, malicious prosecution and abuse of process,

and one federal civil rights count pursuant to 42 U.S.C.

§ 1983.

On October 24, 2001, with Ms. Cook’s consent and in

response to the § 1983 claim, Police Officer Tonkinson, a

third-party defendant, removed the case to the District

Court. He alleged that the federal courts properly had

subject matter jurisdiction over the action pursuant to 28

U.S.C. §§ 1331 and 1367. Palko responded five days later

by filing a motion to remand, asserting that a joinder

defendant’s removal of a case is improper under the

removal statutes.

Before the District Court, Police Officer Tonkinson

asserted that removal was proper and authorized by 28

U.S.C. § 1441. Furthermore, Police Officer Tonkinson

asserted that Palko waived his right to remand,

notwithstanding the fact that Palko had already filed a

motion for remand, by later seeking a Rule 55 default

against Ms. Cook on his cross-claim.2 The District Court

did not agree. Concluding that removal “by third-party

defendant Tonkinson was improper under § 1441,” the

District Court remanded the case to the Court of Common

Pleas. This appeal followed.

II.

After the docketing of this appeal, appellee Palko filed a

motion to dismiss the appeal for lack of jurisdiction

pursuant to 28 U.S.C. § 1447(d). That section provides that

an “order remanding a case to the State court from which

it was removed is not reviewable on appeal or otherwise

2. “When a party against whom a judgment for affirmative relief is sought

has failed to plead or otherwise defend as provided by these rules and

that fact is made to appear by affidavit or otherwise, the clerk shall enter

the party’s default.” Fed. R. Civ. P. 55(a).

5

. . .” 28 U.S.C. § 1447(d) (1994).3 As the Supreme Court has

explained, § 1447(d) “prohibits review of all remand orders

issued pursuant to § 1447(c) whether erroneous or not and

whether review is sought by appeal or by extraordinary

writ.” Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

336, 343 (1976) (emphasis added). However, this

prohibition is limited by the requirement that “ ‘§ 1447(d)

must be read in pari materia with § 1447(c), so that only

remands based on grounds specified in § 1447(c) are

immune from review under § 1447(d).’ ” Quackenbush v.

Allstate Ins. Co., 517 U.S. 706, 711-12 (1996) (quoting

Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127

(1995)).

When the Supreme Court decided Quackenbush and

Things Remembered, “[a]s long as a district court’s remand

[was] 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

lack[ed] jurisdiction to entertain an appeal of the remand

order under § 1447(d).” See Things Remembered, 516 U.S.

at 127 (emphasis added). However, shortly after the

Supreme Court decided Quackenbush on June 6, 1996,

Congress amended 28 U.S.C. § 1447(c) in a way which is

critical to the scope of our appellate jurisdiction. See Pub.

L. No. 104-219, 110 Stat. 3022 (enacted Oct. 1, 1996). We

now give effect to that statutory change.

Prior to Congress’ amendment of § 1447(c), that provision

read: “A motion to remand the case on the basis of any

defect in removal procedure must be made within 30 days

after the filing of the notice of removal under section

1446(a). . . .” 28 U.S.C. § 1447(c) (1994) (amended 1996)

(emphasis added). Congress amended that section “by

striking ‘any defect in removal procedure’ and inserting ‘any

3. Section 1447 does provide that “an order remanding a case to the

State court from which it was removed pursuant to section 1443 of this

title shall be reviewable by appeal or otherwise.” 28 U.S.C. § 1447(d).

However, neither before the District Court nor in its briefs to this Court

has appellant asserted that its removal either was or could have been

premised on 28 U.S.C. § 1443. We therefore limit our analysis to whether

we have jurisdiction to review the District Court’s remand of a removal

based on § 1441.

6

defect other than lack of subject matter jurisdiction’.” S.

533, 104th Cong. § 1 (1996) (enacted). Thus, § 1447(c) now

reads, in critical part:

A motion to remand the case on the basis of any defect

other than lack of subject matter jurisdiction 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.

28 U.S.C. § 1447(c) (Supp. 2002) (emphasis added).

The 1996 amendment plainly effects a broadening of the

scope of § 1447(c) — expanding its application to not just

procedural defects, but any defects — and making the plain

text of paragraph (c) consistent with the legislative history

Congress drafted on § 1447 in 1988. See H. R. Rep. No.

100-889, at 72 (1988), reprinted in 1988 U.S.C.C.A.N. 5982,

6033. The tension that previously existed between the plain

text of § 1447(c) and its legislative history led to significant

judicial conflict over the reading of the statute. Compare

Pierpoint v. Barnes, 94 F.3d 813, 818 (2d Cir. 1996) (giving

a “very broad reading” to § 1447(c) and applying it to “all

cases where the remand motion is premised on an asserted

defect in the removal”), with id. at 821 (Jacobs, J.,

dissenting) (§ 1447(c) applies only to a “procedural defect in

the defendant’s removal of the case”), and Foster v.

Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1213 (3d Cir.

1991) (discussing the legislative history, but “the statute is

clear on its face . . . [§ 1447(c)] applies only to motion for

remand on the basis of any defect in removal procedure.”)

(emphasis original). However, we believe the plain language

of the amended statute now applies “broadly to include all

removals that are not authorized by law.” See Pierpoint, 94

F.3d at 817.4 The amendment has profound implications for

4. The Second Circuit decided Pierpoint on September 5, 1996, less than

one month before the Congressional amendment discussed herein. See

Pub. L. No. 104-219, 110 Stat. 3022 (enacted Oct. 1, 1996). Nonetheless,

we find its reasoning persuasive because the language of the amended

statute conformed with the Second Circuit’s expansive reading of the

original language of § 1447(c), based on the 1988 legislative history.

7

our jurisdiction to review remand orders issued by district

courts. Reading § 1447(d) “in pari materia with § 1447(c),”

as the Supreme Court says we must, see Quackenbush,

517 U.S. at 711-12, the statutory language now provides

that a district court remand order entered “on the basis of

any defect” is not reviewable on appeal. See 28 U.S.C.

§ 1447(c), (d) (1994 & Supp. 2002) (emphasis added). So

long as a district court remands a case to state court based

on a conclusion that the removal was “not authorized by

law,” Pierpoint, 94 F.3d at 817, section 1447(d) “prohibits

review of all remand orders issued pursuant to § 1447(c)

whether erroneous or not and whether review is sought by

appeal or by extraordinary writ.” Thermtron, 423 U.S. at

343 (emphasis added); see also Feidt v. Owens Corning,

153 F.3d 124, 126 (3d Cir. 1998).5

5. We recognize that this statutory change renders obsolete a certain

amount of discussion in some of our prior decisions. See, e.g., Allied

Signal Recovery Trust v. Allied Signal Inc., 298 F.3d 263, 269 (3d Cir.

2002) (§ 1447(c) applies to a “defect in the removal procedure”); In re

FMC Corp. Packaging Sys., 208 F.3d 445, 448 (3d Cir. 2000) (quoting

and applying the pre-amendment language of § 1447(c)); Feidt v. Owens

Corning Fiberglass Corp., 153 F.3d 124, 126 (3d Cir. 1998) (§ 1447(c)

“provides for remand on the basis of either a procedural defect or lack

of jurisdiction”). The amendment has certainly abrogated our

interpretation of § 1447(c) in Foster v. Chesapeake Ins. Co., Ltd., 933

F.2d 1207, 1213 (3d Cir. 1991). Nonetheless, our review of many of the

cases interpreting the prior language of § 1447(c), including Foster,

indicates that most of their holdings appear unaffected by this statutory

change because § 1447(d) still only precludes appellate review of remand

orders based on a “defect.” Thus, the change does not appear to disturb

the large body of case law holding that district courts cannot remand on

a basis for which there is no “authority in . . . the controlling statute,”

see Thermtron, 423 U.S. at 345, and we continue to have jurisdiction to

review remand orders in those instances. See, e.g., id. at 351 (reviewing

and reversing a remand based on a district court’s overcrowded docket);

Quackenbush, 517 U.S. at 714-15 (reviewing a remand based on

abstention); Foster, 933 F.2d at 1211 (reviewing a remand premised on

a forum selection clause); Korea Exchange Bank v. Trackwise Sales, 66

F.3d 46, 51 (3d Cir. 1995) (reviewing a sua sponte remand because it

was out-of-time); In re FMC, 208 F.3d at 448 (reviewing a sua sponte

remand as it was not based on a motion and, thus, not authorized by

statute).

8

III.

Appellee Palko contends that dismissal of this appeal is

proper because 28 U.S.C. § 1447(d) prohibits us from

reviewing the District Court’s Order. Palko asserts that the

District Court’s ruling that Tonkinson was not a

“defendant” eligible to invoke the removal statute was based

both on a lack of subject-matter jurisdiction and a defect in

removal. Although we believe that the District Court’s

remand was not based on a purported lack of jurisdiction,

we agree that the Order was premised on a perceived defect

in removal.

Our reading of the District Court’s remand Order

indicates that the District Court was not basing its remand

on a perceived lack of subject-matter jurisdiction, nor could

that have been the basis. “[A]n irregularity in removal of a

case to federal court is to be considered ‘jurisdictional’ only

if the case could not initially have been filed in federal

court.” Korea Exchange Bank v. Trackwise Sales Corp., 66

F.3d 46, 50 (3d Cir. 1995). Palko’s federal civil rights claim,

based on 42 U.S.C. § 1983, could clearly have been filed in

a federal district court pursuant to 28 U.S.C. § 1331.

Palko’s other claims appear to be part of the same case and

controversy. See 28 U.S.C. § 1367(a). Therefore, we do not

believe that the District Court’s remand was based on a

lack of federal subject-matter jurisdiction.

Nonetheless, we read the District Court’s remand order to

have been “premised on an asserted defect in removal” that

was timely raised by Palko’s motion to remand. See

Pierpoint, 94 F.3d at 818. The District Court’s express

reason for remanding to state court was that “removal of

this action from [state court] by third-party defendant

Tonkinson was improper under § 1441.” While the District

Court, in issuing its Order, did not explicitly use the word

“defect” found in § 1447(c), we read the Order to be based

on the District Court’s belief that Tonkinson’s removal to

federal district court was defective. The District Court

asserted:

[I]t is the majority view in this Circuit and the view of

the leading commentators that the removal statutes are

to be strictly construed with any doubts as to the

9

propriety of removal being resolved in favor of remand;

hence, third party defendants may not remove a case.6

In short, we read the District Court’s remand Order to be

based on its belief that the removal was “not authorized by

law.” Pierpoint, 94 F.3d at 817 (interpreting 28 U.S.C.

§ 1447(c)).

Notwithstanding the District Court’s stated basis for

remanding this case, appellant Tonkinson alleges that the

remand Order is subject to appellate review because he had

alleged that appellee Palko “consented” to litigating in

federal court. Tonkinson removed this case to federal court

on October 24, 2001. On October 29, 2001, Palko then filed

his motion to remand the case to state court. Thereafter,

when the original plaintiff, Deborah Cook, failed to answer

Palko’s counter-claims, Palko moved for a Rule 55 default

to be entered against Ms. Cook on November 13, 2001.

Appellant Tonkinson asserts that by subsequently

seeking a Rule 55 default and then opposing Ms. Cook’s

application for relief from the default entered against her on

November 14, 2001, Palko “consented to federal court

jurisdiction.” According to appellant, this “consent”

6. We caution that other courts and scholars have disputed this

interpretation of 28 U.S.C. § 1441. See, e.g., Carl Heck Eng’rs, Inc. v.

LaFourche Parish Police Jury, 622 F.2d 133 (5th Cir. 1980) (third-party

defendant of “separate and independent” claim may remove). This Circuit

has never addressed the question, and as we do not have jurisdiction to

review this Order, we also have no opportunity to review the merits of

the District Court’s interpretation. Therefore, our decision should not be

read as endorsing the District Court’s reading of 28 U.S.C. § 1441,

particularly as the District Court conducted no analysis of the text and

context of the statute, relying almost exclusively on the supposed

“presumption” in favor of remand, a questionable doctrine whose “basis

has never been very clearly explained.” See Thomas v. Shelton, 740 F.2d

478, 488 (7th Cir. 1984) (Posner, J.) (although the third-party defendant

at issue could not remove, the court did not “hold that section 1441(c)

can never be [so] invoked”). We note that if § 1441(a) is “read in pari

materia with” § 1441(c), cf. Quackenbush, 517 U.S. at 711, paragraph (a)

speaks specifically of removal “by the defendant or defendants,” while

paragraph (c) more broadly applies “[w]henever a separate and

independent claim or cause of action . . . is joined . . .” 28 U.S.C.

§ 1441(a), (c) (emphasis added). Cf. Fed. R. Civ. P. 18 (Joinder of Claims).

10

constituted a “waiver of any right to remand,” and the

District Court was therefore “unauthorized” to order a

remand. Tonkinson asserts that the Thermtron,

Quackenbush, and — here in the Third Circuit — In re FMC

line of cases thereby provides us with jurisdiction to review

such an “unauthorized” remand.

In response, Palko argues that he in no way acquiesced

to litigating in federal court, but promptly (within five days

of the removal) filed his motion to remand. Of course, after

filing his motion, Palko could not simply assume that the

District Court would grant his motion. Accordingly, Palko

counters that it would be “ludicrous” to suggest that, while

that motion was pending, he should be made to “sit idly by,

allowing himself to be prejudiced” and permit his opponent

to “disregard the rules of the federal court.” Furthermore,

Palko asserts that even if he had acquiesced to federal

jurisdiction, that was not a basis for remand that is subject

to appeal, but a rejected argument for not remanding.

Even if we assume that Palko did “consent” to litigating

in federal court after the filing of his motion to remand, we

fail to see how that consent would make the District Court’s

remand Order “unauthorized,” and thus provide us with

jurisdiction to hear this appeal under the Thermtron

exception to § 1447(d). See Thermtron, 423 U.S. at 345

(reviewing remand order where the “District Court exceeded

its authority in remanding on grounds not permitted by the

controlling statute”). Once a party timely files a motion to

remand, § 1447(c) authorizes a district court to enter a

remand order either “on the basis of any defect” or for a

“lack of subject matter jurisdiction.” 28 U.S.C. § 1447(c)

(Supp. 2002). The decision to enter a remand order on

those bases is within the discretion of the district court,

and, whether erroneous or not, is not subject to appeal. See

id. § 1447(d); Quackenbush, 517 U.S. at 711-12.

We are unpersuaded by the cases appellant Tonkinson

cites. Those cases address whether district courts properly

exercised their discretion in denying remand orders to

which the parties seeking remand seemingly otherwise

would have been entitled.7 See Johnson v. Odeco Oil & Gas

7. Unlike a district court’s order to remand based on a “defect” or lack

of subject-matter jurisdiction, no statute generally restricts our ability to

review decisions not to remand. See 28 U.S.C. § 1447.

11

Co., 864 F.2d 40, 42 (5th Cir. 1989) (affirming the district

court’s refusal to remand, though the case was improperly

removed in the first instance, because the plaintiff

participated in discovery and other pretrial litigation

matters in federal court); Lanier v. Am. Bd. of Endodontics,

843 F.2d 901, 905 (6th Cir. 1988) (concluding that the

district court properly declined to remand, though removal

had been untimely, because the plaintiff had entered into

stipulations, engaged in discovery, and filed an amended

complaint in federal court) (reh’g and reh’g en banc denied).

These cases appear premised on avoiding unfairness or

waste based on a judgment that the plaintiffs seeking

remand had “waived a right to object to procedural

irregularities” by unduly delaying their motions to remand.

Lanier, 843 F.2d at 905. We do not read these cases to

suggest that the equitable doctrine there applied —

essentially a specific form of laches recognized by some

Circuits to deny remand where a plaintiff has failed to

diligently pursue its remand rights — completely divested

those district courts of their authority to remand in those

situations. Laches is, of course, an affirmative defense to a

claim, and the party asserting it bears the burden of proof.

See E.E.O.C. v. Great Atlantic & Pacific Tea Co., 735 F.2d

69, 80 (3d Cir. 1984). The defense does not negate the

claim itself, but estops the granting of the relief sought

after a consideration of the equitable merits of the claim.

See University of Pittsburgh v. Champion Products Inc., 686

F.2d 1040, 1044 (3d Cir. 1982).

In Johnson and Lanier, by acknowledging that the

question of whether to deem the right to remand waived

and not remand was within the district courts’ “broad

discretion,” Lanier, 843 F.2d at 905; see also Johnson, 864

F.2d at 42 (“within the district court’s discretion to

determine”), the Fifth and Sixth Circuits implicitly

recognized that those district courts continued to possess

the statutory authority to remand.8 It was the two District

8. Generally speaking, we review questions of statutory authority and

federal jurisdiction de novo, while questions regarding a district court’s

judgment in the consideration of facts will be reviewed for abuse of

discretion. See, e.g., In re Prudential Ins. Co. of Am. Sales Practice Litig.,

261 F.3d 355, 363 (3d Cir. 2001) (reviewing whether a district court

injunction was permissible under the Anti-Injunction Act).

12

Court decisions not to use their authority — authority that

all appeared to acknowledge existed — and instead deny

the requested relief on waiver grounds, that was under

review. The instant case does not permit us to reach the

issue of the District Court’s discretion.

The Thermtron exception to the jurisdictional bar

established by § 1447(d) is premised on a “District Court

exceed[ing] its authority in remanding on grounds not

permitted by the controlling statute.” Thermtron, 423 U.S. at

345 (emphasis added); see also Quackenbush, 517 U.S. at

712 (“abstention-based remand order does not fall into”

§ 1447(c)); In re FMC, 208 F.3d at 448 (“remand orders

issued outside the authority granted . . . under § 1447(c)”

are reviewable). Thus, appellant’s argument boils down to a

suggestion that a litigant’s actions, after the filing of a

timely motion to remand a case, can abrogate a district

court’s Congressionally granted authority to remand that

case “on the basis of any defect” it finds. 28 U.S.C.

§ 1447(c). Appellant cites no cases supporting that

proposition. Furthermore, the implication of such a holding

would appear to be that all remand orders — even those

clearly and correctly grounded on the “not reviewable”

bases for remand that Congress provides in § 1447(c) —

could be delayed and subjected to appellate review upon a

litigant’s mere assertion that waiver is somehow justified.

We therefore reject the appellant’s suggestion that the

actions of a litigant, through an equitable device derived

from the common law, can make “unauthorized” — as that

term is relevant for determining whether the Thermtron

exception applies, see 423 U.S. at 345 — a basis for

remand which Congress has expressly, by statute,

provided. See 28 U.S.C. § 1447(c).9 We emphasize again

9. In practice, it appears that the only way a litigant could be said to

have “consented” to a defective removal in a way that would deprive a

district court of any “authority” to remand, as that term is used in

Thermtron, would be by not filing a “motion to remand the case . . .

within 30 days after the filing of the notice of removal,” as the statute

requires. See 28 U.S.C. § 1447(c). This Circuit has clearly held that in

that circumstance a district court’s order to remand would be statutorily

unauthorized and, therefore, appealable. See In re FMC Corp., 208 F.3d

at 451 (remand order without proper motion within the 30 days required

by statute is unauthorized).

13

that Congressional policy favoring remands on those

grounds is so clear that those orders are “not reviewable on

appeal or otherwise.” Id. § 1447(d).

Because Palko’s alleged “consent” did nothing to abrogate

the District Court’s legal authority to remand under “the

controlling statute,” the Thermtron exception is

inapplicable. Thermtron, 423 U.S. at 345. Palko’s purported

“consent” can, at best, only cause us to question the

District Court’s use of discretion in the exercise of its

remand authority if we consider the merits of the Order. Cf.

Champion Products, 686 F.2d at 1044. Since we do not

reach those merits, we reject appellant’s argument. Section

1447(d) no more grants us jurisdiction to review that

rejected argument for not remanding than it grants us

jurisdiction to review any other aspect of the District

Court’s decision.

IV.

We are limited by 28 U.S.C. § 1447(d) in our ability to

review a district court’s order, entered in response to a

timely motion of a party, to remand to state court a case

removed to federal court. While the phrase “procedural

defect” in 28 U.S.C. § 1447(c) (1994) formerly led to

disagreement over the intended scope of the § 1447(d) bar

on the review of remand orders, Congress has clarified the

matter by amending the removal statutes and eliminating

the troubling language. A district court remand ordered “on

the basis of any defect” is now beyond our appellate

jurisdiction. See 28 U.S.C. § 1447(c), (d) (1994 & Supp.

2002).

We read the District Court’s Order to have remanded this

case to state court based upon the District Court’s belief

that the removal was “not authorized by law.” See Pierpoint,

94 F.3d at 817. We conclude that such a “defect” would fall

within the “basis” of § 1447(c) for which Congress has

authorized remands to state court. See 28 U.S.C. § 1447(c)

(“any defect”) (emphasis added). Palko’s purported

“consent” to litigating in federal court, after the timely filing

of his motion to remand, did nothing to remedy that

“defect.” Therefore, that “consent” did nothing to abrogate

14

“the authority . . . permitted [to the District Court] by the

controlling statute” to remand this case. See Thermtron,

423 U.S. at 345. “[W]hether erroneous or not,” id. at 343,

the reasoning and discretion of a district court in issuing

such a remand order “is not reviewable on appeal or

otherwise.” 28 U.S.C. § 1447(d). Lacking jurisdiction to

review the merits of this appeal, we dismiss the appeal.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit