Black & Decker (u.s.), Inc. And Home Insurance Company v. Honorable Garrett E. Brown, Jr., United States District Judge, Nominal and Guy Bussell , 817 F.2d 13 ( 1987 )

OPINION OF THE COURT

STAPLETON, Circuit Judge.

Subsection (c) of Section 1447 of the Removal Statute provides that if “at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case____” 28 U.S.C. § 1447(c). Subsection (d) provides that, with one exception not here relevant, 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). The Supreme Court has held that the inclusion of the phrase “or otherwise” precludes review of a remand order in a proceeding like the instant one that is originated by a petition for an extraordinary writ. Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977).

The district court in this case decided to exercise the authority conferred upon it by subsection (c) and filed an opinion recording its conclusion that the case was removed from the state court “improvidently and without jurisdiction.” We conclude that we are barred from reviewing that decision by subsection (d). While it is true that subsection (d) does not literally describe the situation currently before us because the district judge has not yet entered an order remanding the case, we believe it would thwart the clear Congressional intent to grant review in this proceeding. As the Supreme Court has twice noted, “in order to prevent delay in the trial of remanded cases, ... Congress immunized from all forms of appellate review any remand order issued on the grounds specified in § 1447(c), whether or not that order might be deemed erroneous by an appellate court.” Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), (citing United States v. Rice, 327 U.S. 742, 66 S.Ct. 835, 90 L.Ed. 982 (1946)). If we were to reward with appellate review a party who manages to race to the Court of Appeals before the entry of a formal remand order, we would occasion the same kind of delay in the remanded proceeding that Congress sought to avoid. We decline to do so.

The appeal will be dismissed for want of appellate jurisdiction.