Cook v. Wikler ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
2-24-2003
Cook v. Wikler
Precedential or Non-Precedential: Precedential
Docket 02-1340
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Cook v. Wikler" (2003). 2003 Decisions. Paper 770.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/770
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
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