State of Ohio v. Charles E. Wright, Ohio State Highway Patrol Trooper , 992 F.2d 616 ( 1993 )

DAVID A. NELSON, Circuit Judge,

concurring.

I concur in the judgment announced by Chief Judge Merritt and in most of the reasoning employed in his opinion. I write separately, however, to note my belief that it makes no difference whether the district court adjudicated the merits of the defendant officer’s federal defense (the view taken by the dissent) or held that the defense was not colorable (the view taken by Judges Merritt and Jones).¹

What controls our power to review the district court’s remand order is 28 U.S.C. § 1447(d). That statute says in the plainest of terms that “[a]n order remanding a case to the State court from which it was removed is not reviewable....” The order at issue here did remand the case to the state court from which it was removed, and if words have meaning the order simply “is not reviewable.”

The district judge issued the remand order because it appeared to him, rightly or wrongly, that removal jurisdiction did not exist. The judge obviously believed that a remand was required by 28 U.S.C. § 1447(c), which says that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), does not suggest that § 1447(d) can be ignored where the remand order results from a misapplication of § 1447(c); as Judge Jones’ concurrence points out, Thermtron says just the opposite. See 423 U.S. at 343. If we would not have been justified in ignoring § 1447(d) because the district court erroneously held subject matter jurisdiction to be lacking because the defendant officer had no “colorable” federal defense, I do not see why we would be entitled to shut our eyes to the statute if the district court erroneously thought it was without jurisdiction because the proffered defense, even if colorable, was invalid as a matter of law.

1 . This presupposes that there is a distinction between a defense that is held to be legally insufficient and a defense that does not confer federal jurisdiction because it is not even plausible enough to be considered "colorable.” Like my colleagues on both sides, I believe that it is appropriate to draw such a distinction. See Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), where the Supreme Court expressed itself thus in discussing The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 18 L.Ed. 851 (1868):

"For purposes of removal, we only required the mayor and aldermen to allege a colorable defense under federal law; '[t]he validity of the defence authorized to be made is a distinct subject. It involves wholly different inquiries .... It has no connection whatever with the question of jurisdiction.' " Mesa, 489 U.S. at 129, 109 S.Ct. at 964, quoting Cooper, 73 U.S. (6 Wall.) at 254.

One could argue, to be sure, that the distinction between a colorable defense and a valid defense disappears where there is no dispute as to the facts. The district court may well have assumed that no meaningful distinction existed in the case at bar, which would explain why the court ordered a remand on the ground that "Defendant has failed to demonstrate that he has a federal defense....” Such an assumption would be wrong, in my view. Where the legal sufficiency of a proffered federal defense is a reasonably close question, as it is here, it seems to me that a district court can and should retain jurisdiction and adjudicate the merits of the defense in a way that would permit an appeal to be taken to the federal court of appeals. But the fact that the remand of the present case was probably improper does not answer the question whether Congress has given us power to review it.