Those remand decisions create a plethora of appellate issues concerning reviewability, and do so to an even greater extent when they include dismissal of some, but not all, claims.
Federal Statutes Controlling Appellate Review of Remand Orders
1447(c) and (d) set forth the procedures and general nonreviewability of remand orders after a case has been removed from state to federal court.
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) [28 U.
Under [section] 1447(d), federal appellate courts are barred from reviewing remand orders issued under [section] 1447(c) (lack of subject matter jurisdiction), whether by appeal, mandamus, or otherwise, even if the district court's order is erroneous: "(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise [, except when civil rights cases removed under [section] 1443 are involved.
The rationale is that allowing federal appeal of remand orders would simply delay justice in state courts.
Section 1447(d)'s language would, therefore, seemingly bar appellate review of any ERISA remand decision by a district court.
The General Rule Is Remand Nonreviewability-Or Is It?
For example, a remand based on district court refusal to exercise ancillary federal jurisdiction over nonfederal elements of a case once the federal claims dropped out of the case has been held to be within the scope of [section] 1447(c) and not reviewable.
1987), in considering the applicability of [section] 1447(c) to remand orders based on preemption, the 11th Circuit concluded that precedent precluded review.
Thus, under the Glasser decision, if the "substance" of the analysis ultimately resulting in remand is a jurisdictional one under ERISA's [section] 502(a) complete preemption doctrine, triggering no substantive inquiry into a claim's merits, appellate review of that remand decision in the 11th Circuit would be barred.
On appeal, the 11th Circuit reaffirmed that the "matter of substantive law exception" did not open appellate review because "the substantive law decision related to the question of jurisdiction; the remand order did not affect the substantive rights of the parties.
The 11th Circuit rejected the defendant's argument that appellate review was proper because the district court's decision to remand was based on a substantive interpretation of ERISA: the district court's "[dejection of [the defendants'] preemption argument was merely a step towards the conclusion that the court lacked jurisdiction.
As to the separableness between the order of dismissal of some claims and the order of remand of the remaining state law claims, the "separableness exception," or "Waco doctrine," would not appear to open review of these kinds of district court orders either.