dismissing for lack of appellate jurisdiction where “the question of removal jurisdiction was the heart of the decision in the district court, and the district court had to examine the plausibility of the federal defense in making its ruling to remand for lack of removal jurisdiction”
How later courts described this case
- dismissing for lack of appellate jurisdiction where “the question of removal jurisdiction was the heart of the decision in the district court, and the district court had to examine the plausibility of the federal defense in making its ruling to remand for lack of removal jurisdiction”
- noting that “federal officer” remand order was not appealable even though the district court had to “examine and discuss the federal defense”
- discussing the difference between “colorable” and “valid” with respect to a federal defense serving as a basis for removal under 28 U.S.C. § 1442
- where question of removal jurisdiction was the heart of the decision, fact that district court had to examine plausibility of federal defense did not confer jurisdiction upon the court of appeals
Written by the judges who cited it.
The opinion
BOYCE F. MARTIN, Jr., Circuit Judge,
concurring.
I concur in the majority opinion authored by Judge Merritt and in Judge Jones’ separate concurring opinion. In addition, I would like to add that the reason for this court’s quandary in this case, the reason for the multitude of approaches that we have taken, is the Supreme Court’s refusal in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 , 96 S.Ct. 584 , 46 L.Ed.2d 542 (1976), to follow the clear dictates of 28 U.S.C. § 1447 (d).
Congress could not have written a clearer statute. 28 U.S.C. § 1447 (d) provides:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 [civil rights cases] of this title shall be reviewable by appeal or otherwise.
Any fair and honest reading of this statute mandates that no appellate court will review a district court’s decision to remand a case unless the case was removed pursuant to section 1443. Neither the Hermansdorfer case nor this ease was removed pursuant to section 1443, so there should be no appellate review of the remand decision in either case. The Hermansdorfer court, despite the clear dictates of Congress, decided to review the district court’s remand order.
The court may have had legitimate policy reasons for refusing to follow section 1447. The court’s resort to use of prior statutes, however, to interpret away the plain meaning of section 1447, Hermansdorfer, 423 U.S. at 347-48 , 96 S.Ct. at 591 , is a tour de force of judicial overreaching. Congress made its choice clear concerning the procedure for reviewing remand orders in section 1447(d), and the court’s disagreement with the result mandated by Congress is not a sufficient basis upon which to find appellate jurisdiction, which must be found in the law. If section 1447 is unwise, then Congress possesses the prerogative to change it, not any federal court.
Twisting a clear jurisdictional statute to mean something which it does not mean creates havoc for courts. This court’s effort to divine whether section 1447 means what it says under the facts of this case, required due to Hermansdorfer and its progeny, highlights the error in refusing to comply with section 1447’s clear language. We already have numerous opinions in this case, arguing, for example, over the distinction between a “colorable” defense versus a “valid” defense, to determine whether Hermansdorfer applies. Arguments such as these show that the fundamental problem with Hermansdorfer is that the Supreme Court has created a hole, the parameters of which are completely undefined, in section 1447. In our effort to explicate the hole created by Hermansdorfer , we will not achieve a satisfactory, cogent opinion that will be truly beneficial to future cases. The root of the problem lies nonetheless with the Supreme Court’s refusal to follow section 1447(d).