Before reaching these arguments, though, the Federal Circuit disposed of the appeal on a threshold issue, holding that it lacked appellate jurisdiction to review the district court’s remand order. The Federal Circuit began by explaining that 28 U.S.C. § 1447(d) provides that “[a]n order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise.” Slip op. at 7(alteration in original).

The Eighth Circuit agreed and found that the local controversy provision, which is set apart from the CAFA’s jurisdictional requirements, inherently recognizes the district court has subject matter jurisdiction by directing the court to “decline to exercise” such jurisdiction when certain requirements are met. Thus, the local controversy provision operates as an abstention doctrine, which does not divest the district court of subject matter jurisdiction. In conjunction with the above discussion, the defendants next argued that because the plaintiffs moved to remand the matter more than thirty days after removal, the remand motion should have been denied as untimely pursuant to 28 U.S.C. §1447(c). Under §1447(c), “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…” Having determined the local controversy provision is akin to an abstention doctrine, which is not jurisdictional in nature, the Eighth Circuit examined whether it constitutes “any ‘defect’ other than subject matter jurisdiction,” such that the plaintiffs’ remand motion was untimely because it was not brought within thirty days after removal.

For the County of San Mateo, the County of Marin, the City of Imperial Beach, the City and County of Santa Cruz, and the City of Richmond, the district court found that it lacked subject-matter jurisdiction. The district court in the City of Oakland and the City and County of San Francisco found that it had federal question jurisdiction under 28 U.S.C. § 1331 because the cities’ claims were “necessarily governed by federal common law.”Scope of Appellate Review of Remand OrdersTurning first to the threshold question of the scope of its appellate review, the Ninth Circuit addressed whether it could consider all of the energy companies’ grounds for removal or whether 28 U.S.C. § 1447(d) limited its review to the federal-officer grounds for removal. Section 1447(d) contains two clauses: the non-reviewability clause and the exceptions clause.

Polo v. Innoventions Int’l, LLC, 833 F.3d 1193 (9th Cir. Aug. 18, 2016).The Ninth Circuit remanded this case removed under the CAFA back to state court by holding in part the maxim “a putative class action, once properly removed, stays removed” directly contradicts the statutory language of 28 U.S.C. § 1447(c), which requires: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” The Ninth Circuit further held that actions removed under CAFA can be remanded on mostly the same terms as any other case removed to federal court.Background Facts:The plaintiff in Polo filed a putative class action lawsuit in a California state court alleging that the defendant marketed a product called DiabeStevia through grossly misleading and exaggerated claims of its effectiveness, in particular that it could be used to treat diabetes, in violation of California’s Consumers Legal Remedies Act (“CLRA”).

On May 17, 2021, the Supreme Court held in BP P.L.C., et al. v. Mayor and City Council of Baltimore that when a remand order is appealable under 28 U.S.C. § 1447(d), the court of appeals may review the entire remand order, not just the grounds for removal giving rise to the order’s appealability.This case involves claims by local government officials in the City of Baltimore that energy companies concealed the alleged environmental impact of their fossil fuels.

The plaintiff cities and counties then moved to remand the suits back to California state courts. Two federal district court judges reached different conclusions on those motions—one concluding that it lacked subject-matter jurisdiction, the other finding that it had federal jurisdiction because the cities claims were “necessarily governed by federal common law.”On appeal, the Ninth Circuit addressed whether it could consider all of the energy companies’ grounds for removal or whether 28 U.S.C. § 1447(d) restricted its review to federal officer grounds only. The energy companies argued that because removal based on federal-officer jurisdiction could be reviewed by the court under § 1447(d)’s exception clause, then the court also could consider any other grounds for removal because § 1447(d) authorizes appellate review of “an order,” and not just the particular reasons for an order.

The district court examined each of the grounds for removal asserted by the energy companies and determined that none of the grounds could support federal court jurisdiction. The energy companies appealed the district court’s remand order to the Fourth Circuit Court of Appeals pursuant to 28 U.S.C. § 1447(d).Section 1447, which governs general post-removal procedure, contains two clauses relevant to appellate review of remand orders: the non-reviewability clause and the exceptions clause. The non-reviewability clause states that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal . . .”

The plaintiffs argued that the forum defendant rule prevented removal of those cases because McKesson was a forum defendant. Pfizer argued that forum defendant rule was inapplicable (1) in all eight cases because McKesson was not “properly joined and served” at the time of removal and (2) in seven of the cases because plaintiffs had waived this issue under 28 U.S.C. § 1447(c).The parties agreed that McKesson was not served prior to removal, but was served after removal. The District Court noted that 28 U.S.C. § 1441(b)(2) prevents removal solely on the basis of diversity jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”

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).

The court held a firm line on the reviewability of such orders, ruling that just as it has no jurisdiction to review a remand order, it also has no jurisdiction to review a denial of a motion to reconsider a remand order. The court’s opinion reinforces some parameters already familiar to those who have moved, or opposed a motion, for remand: In opposing a remand motion, energies should be focused on the district court briefing, since a remand order is unreviewable under 28 U.S.C. § 1447. If the district court grants the motion and remands the case to state court, a motion for reconsideration can be filed in the district court. The denial of such a reconsideration motion is unreviewable, just as the remand order itself is unreviewable.