Remand Order Cannot Be Appealed, Fifth Circuit Says

There are a number of federal statutes that expressly prohibit removal to federal court of various types of claims, such as worker’s compensation cases. 28 U.S.C. §1445(c). If such a case is removed to federal court and then remanded, is the remand order reviewable on appeal? That was the question confronting the Fifth Circuit in Ernewayn v. Home Depot U.S.A., Inc., 2013 U.S. App. LEXIS 16883 (5th Cir. Aug. 14, 2013).

The general rule is that “an order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise.” 28 U.S.C. §1447(d). But this rule applies to only remands based upon grounds specified in §1447(c). Section 1447(c) allows for remands based on a timely raised defect in removal procedure or on lack of subject matter jurisdiction.

Ernewayn sued her employer, Home Depot USA, in state court, claiming that Home Depot’s negligence caused her on-the-job injury. Home Depot removed the case to federal court based on diversity. The employee moved for remand contending that the action arose under the Texas Workers Compensation Act, and therefore was not removable under federal law.

The district court found diversity jurisdiction but then held that whether the case arose under the Texas Workers Compensation Act was ambiguous. Given the ambiguity and the principle of removal law that all ambiguities are to be construed against removal, the district court held that the case was non-removable and therefore remanded under 28 USC 1447(c) because of a defect in removal procedure.

The employer appealed contending that the district court’s remand was discretionary, and therefore, appealable. The Fifth Circuit concluded that a statutory restriction against removal—like the ban on removing worker’s compensation cases—was a defect in removal procedure under §1447(c) and dismissed the appeal as one from a non­appealable remand order.