Adkins, Billy E. v. IL Central RR Co ( 2003 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    Nos. 01-3081 & 01-3418
    BILLY E. ADKINS, Administrator of the
    ESTATE OF HELENA R. ADKINS,
    Plaintiff-Appellee,
    v.
    ILLINOIS CENTRAL RAILROAD COMPANY,
    Defendant-Appellant.
    ____________
    Appeals from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 01 C 2165—James F. Holderman, Judge.
    ____________
    ARGUED FEBRUARY 11, 2002—DECIDED MARCH 6, 2003
    ____________
    Before RIPPLE, DIANE P. WOOD, and WILLIAMS, Circuit
    Judges.
    DIANE P. WOOD, Circuit Judge. Although the underlying
    facts of this case relate to a tragic train accident that
    occurred several years ago in Bourbonnais, Illinois, the
    question before us in this appeal is a narrow procedural
    one: can this court review the district court’s decision to
    remand the case to the state court in which it was orig-
    inally filed? We conclude that the best way to interpret
    the district court’s order is as one finding that it had no
    subject matter jurisdiction over the claims that were
    2                                   Nos. 01-3081 & 01-3418
    remanded. That being the case, this court has no appel-
    late jurisdiction over the district court’s remand order.
    Furthermore, even if we are wrong and the order was
    simply a decision to remand all supplemental state claims
    to the state court, we would exercise our jurisdiction to
    find that there was no abuse of discretion in that decision.
    We therefore dismiss this appeal for lack of appellate
    jurisdiction.
    I
    On March 15, 1999, an Amtrak passenger train known
    as the City of New Orleans (made famous in a song writ-
    ten by Steve Goodman and performed by Arlo Guthrie
    and later Willie Nelson) collided with a semi-tractor trailer
    loaded with steel rebar at a railroad crossing in Bourbon-
    nais, Illinois. The City of New Orleans derailed as a result
    of the collision, resulting in significant injury and the
    loss of many passengers’ lives. This suit, along with
    more than fifty others, was filed in Illinois state court
    by injured passengers and the estates of those killed as a
    result of the collision. The plaintiffs alleged negligence,
    strict products liability and breach of implied warranties
    on the part of several defendants, including General
    Electric, which designed and manufactured the locomo-
    tive that pulled the City of New Orleans. The additional
    defendants were the manufacturers, owners, and opera-
    tors of the equipment involved in the accident. Two from
    that group are relevant to this appeal: Illinois Central,
    which operates the tracks on which the City of New Or-
    leans traveled, and Birmingham Steel Company, which
    loaded the steel rebar onto the trailer involved in this
    collision from its adjacent manufacturing facility. Amtrak,
    though not initially named as a defendant in this suit, plays
    a role in the issues before us as well.
    Nos. 01-3081 & 01-3418                                   3
    Essentially, the procedural posture of this case can be
    boiled down to a simple pattern. Plaintiffs (A) filed suit
    in state court raising a number of state law claims
    against a set of defendants (B through n). One of those
    defendants, GE, removed the case to federal court, assert-
    ing as a basis for removal the argument that the federal
    Locomotive Inspection Act, 
    49 U.S.C. § 20701
    , et seq.,
    “completely preempted” the state law claims. (In other
    words, GE claimed that any lawsuit these plaintiffs were
    bringing was inevitably and necessarily based on a fed-
    eral question, and thus removal was available under 
    28 U.S.C. § 1441
    (a) and (b).) Later, defendant Birmingham
    Steel filed a third-party complaint pursuant to FED. R.
    CIV. P. 14 against Amtrak, which is a federal instrumental-
    ity. The district court initially concluded that GE’s “com-
    plete preemption” argument was correct, and thus that
    the removal was properly based on the presence of a fed-
    eral question (and supplemental jurisdiction over the re-
    maining claims). The court then dismissed all claims that
    the plaintiffs had asserted against GE (all of which re-
    lied on state law) on preemption grounds. Finally, turning
    to the other defendants, the court ascertained that none
    of them was arguing that federal question jurisdiction
    existed based on the “complete preemption” idea. In the
    absence of a federal question, and in the absence of the
    complete diversity required by 
    28 U.S.C. § 1332
    , he con-
    cluded that the case had to be remanded to state court.
    Believing that the order of remand was erroneous, Illinois
    Central filed an appeal to this court. (Plaintiffs have not
    filed a cross-appeal from the order dismissing their claims
    against GE, and thus we have no occasion to rule on the
    correctness of the findings supporting that order.)
    II
    The first question we must decide is whether we have
    appellate jurisdiction over Illinois Central’s challenge to
    4                                   Nos. 01-3081 & 01-3418
    the remand order. After devoting scant attention to this
    threshold question in its opening brief, Illinois Central
    urged us to find such jurisdiction in its reply brief. Plain-
    tiffs-appellees squarely challenged appellate jurisdiction
    in their brief. Even if they had not, however, we would
    have had an independent duty to satisfy ourselves that
    jurisdiction existed before we could proceed to the merits
    of the appeal.
    The reason why appellate jurisdiction is problematic, at
    best, comes from the language of the statute governing
    removals and remands. In deceptively simple words, 
    28 U.S.C. § 1447
    (d) says
    An order remanding a case to the State court from
    which it was removed is not reviewable on appeal or
    otherwise, except that an order remanding a case to
    the State court from which it was removed pursuant
    to section 1443 of this title [which applies only to
    civil rights cases] shall be reviewable by appeal or
    otherwise.
    The naive reader might think that this meant no appel-
    late consideration by appeal, by writ of mandamus, or
    by any other device that lawyers might serve up, but
    that reader would be wrong. In a line of cases that began
    with Thermtron Products, Inc. v. Hermansdorfer, 
    423 U.S. 336
     (1976), the Supreme Court has adopted a more nuanced
    interpretation of the statute, and it is therefore the
    Thermtron approach we are bound to follow.
    In Thermtron itself, the Court faced an insubordinate
    district court judge who had remanded cases to the state
    court because his docket was overcrowded. The court of
    appeals had reviewed the propriety of these remands by
    means of a writ of mandamus, and the question before the
    Supreme Court was whether this was possible in light of
    the § 1447(d) ban on review “on appeal or otherwise.” Using
    Nos. 01-3081 & 01-3418                                    5
    a close reading of the statute as a whole, the Court con-
    cluded that the § 1447(d) ban on appellate consideration
    of remand orders had to be linked to the reasons for re-
    mand found in § 1447(c). 
    423 U.S. at 346
    . If the district
    court announced that its remand order was based on one
    of the grounds for remand recognized in § 1447(c) (essen-
    tially, defects in removal procedure or want of subject
    matter jurisdiction), then review was barred. If the dis-
    trict court’s order fairly read indicated that it was re-
    manding for some other reason—if it was potentially ultra
    vires—then some form of appellate review could proceed. Id.
    In Thermtron itself, after accepting jurisdiction, the Court
    concluded that overcrowded dockets was not a permissible
    reason for remand. In the later case of Quackenbush v.
    Allstate Insurance Co., 
    517 U.S. 706
    , 711-12 (1996), the
    Court agreed that remand in conjunction with a decision
    to abstain fell outside the scope of the § 1447(c) reasons
    and was thus reviewable despite § 1447(d); it then con-
    cluded on the merits that the remand order was unwar-
    ranted.
    The Court has made it clear, however, that the Therm-
    tron holding was not an open-ended invitation to exercise
    appellate review over remand decisions. To the contrary,
    it has three times cautioned that the Thermtron excep-
    tion to § 1447(d) is to be narrowly construed. Just over a
    year after Thermtron was decided the Court issued a
    terse, per curiam opinion reversing the Fifth Circuit’s
    decision to reverse and remand a case to the district court
    for reconsideration of a remand order that had been
    based upon a (possibly erroneous) finding that diversity
    jurisdiction was lacking. See Gravitt v. Southwestern Bell
    Telephone Co., 
    430 U.S. 723
    , 723-24 (1977). In doing so
    the Court stressed the fact that the appeals courts are
    entirely without jurisdiction to review a remand order
    based on jurisdictional grounds, and that nothing in
    Thermtron was to the contrary. 
    Id.
     Nearly a decade later
    6                                   Nos. 01-3081 & 01-3418
    in Carnegie-Mellon University v. Cohill, 
    484 U.S. 343
    , 356
    (1988), the Court described Thermtron as “a response to
    a clearly impermissible remand,” and hence as some-
    thing that did not forbid a district court from remanding
    pendent state-law claims. Finally, in Things Remembered,
    Inc. v. Petrarca, 
    516 U.S. 124
    , 128 (1995), the Court held
    that a district court’s order remanding a bankruptcy
    case to state court on the basis of untimely removal fell
    within the review prohibition of § 1447(d). Interestingly,
    Justice Kennedy (joined by Justice Ginsburg) filed a
    concurring opinion in Things Remembered in which he
    characterized Carnegie-Mellon as an opinion limiting
    Thermtron’s scope. He specifically distinguished between
    the legitimacy of remanding a pendent or supplemental
    state claim to state court, on the one hand, and the possibil-
    ity of judicial review of such an order, on the other. See
    
    516 U.S. at 130
    . The latter issue, he pointed out, was not
    before the Court in Things Remembered. 
    Id.
    Before turning to the further development of Thermtron
    in the lower courts, it is worth pausing for a moment to
    consider why Congress might have included § 1447(d) in the
    Judicial Code. The answer is apparent: it wanted to expe-
    dite the process of choosing a forum for litigation and to
    avoid exactly the kind of lengthy proceeding we are hav-
    ing in the present case. It is a one-bite-at-the-apple scheme,
    with the narrow Thermtron exception for truly abusive
    situations, plus the Quackenbush exception for unwar-
    ranted applications of the slippery abstention doctrines.
    Normally, however, a litigant is entitled to remove a case
    from state court (a very mechanical procedure), to have
    the federal court test the propriety of the removal, and
    then to proceed with the case in either the federal court
    or the state court without further ado. The only thing that
    is at stake is the forum that will hear a claim. This is
    certainly not an unimportant matter, but it is not so
    fundamental that a second or third layer of judges must
    Nos. 01-3081 & 01-3418                                     7
    test its correctness. And as the Court has noted in a
    case not involving § 1447(d), an order resolving a dispute
    over where litigation shall proceed is not an appealable
    final order, nor does it fall within the exception carved
    out by the collateral order doctrine for significant claims
    that are otherwise effectively unreviewable on appeal. See
    Lauro Lines s.r.l. v. Chasser, 
    490 U.S. 495
    , 498 (1989). This
    and the Supreme Court’s receptivity to arbitral fora as
    alternatives to courts, its acceptance of forum selection
    clauses in contracts, and its frequent reminders that the
    state courts are fully capable of adjudicating federal
    claims and are entitled to respect by federal courts, all
    support the idea that at some point litigation over the
    choice of a courtroom must end. Section 1447(d) establishes
    that endpoint for almost all cases that are removed to
    federal court: it comes when the district court judge makes
    the call, and it therefore falls outside the normal pattern
    of cases in which an appeal is either immediately or
    ultimately available. While we are certainly obliged to
    apply Thermtron and Quackenbush, we must also take
    seriously the cautionary language in Gravitt, Carnegie-
    Mellon and Things Remembered. Otherwise, § 1447(d) will
    cease to play any meaningful function. Perhaps that
    would be good policy, but it is a policy that only Con-
    gress can implement; as long as the statute is on the
    books, it is binding on the federal courts.
    It is against that background that we must evaluate
    one possible approach that arguably would support our
    appellate jurisdiction here. Some courts appear to fol-
    low a rule under which appellate review is permissible
    if a jurisdictional remand occurs as a result of “later
    events” in a case. See In re Amoco Petroleum Additives Co.,
    
    964 F.2d 706
    , 708-09 (7th Cir. 1992) (“[W]e understand
    Carnegie-Mellon to permit review when the district court
    believes that removal was proper and that later develop-
    ments authorize remand.”); In re Shell Oil Co., 
    966 F.2d 8
                                      Nos. 01-3081 & 01-3418
    1130, 1132 (7th Cir. 1992) (same). See also Poore v.
    American-Amicable Life Ins. Co., 
    218 F.3d 1287
    , 1291 (11th
    Cir. 2000); Trans Penn Wax Corp. v. McCandless, 
    50 F.3d 217
    , 223 (3d Cir. 1995); Bogle v. Phillips Petroleum Co., 
    24 F.3d 758
    , 761-62 (5th Cir. 1994); Van Meter v. State Farm
    Fire & Cas. Co., 
    1 F.3d 445
    , 450 (6th Cir. 1993). But see
    Angelides v. Baylor College of Med., 
    117 F.3d 833
    , 836 &
    n.3 (5th Cir. 1997) (“a remand order based on § 1447(c)
    jurisdictional grounds is not reviewable even if based on
    a post-removal event”); Linton v. Airbus Industrie, 
    30 F.3d 592
    , 599-600 & n.38 (5th Cir.), cert. denied, 
    513 U.S. 1044
    (1994) (same); Nutter v. Monongahela Power Co., 
    4 F.3d 319
     (4th Cir. 1993) (declining to address whether appel-
    late review exists for remand for lack of subject matter
    jurisdiction because of post-removal occurrences).
    In our view, however, it would be a mistake to think
    that there was a hard-and-fast rule to that effect (and we
    thus have no necessary quarrel with the holdings of the
    cases cited in the previous paragraph). All later events
    are not equal. Some, such as a district court’s conclusion
    that an initial acceptance of a claim of “complete preemp-
    tion” was erroneous, reveal that the federal court never had
    jurisdiction of the case to begin with. Other later events,
    such as a bona fide loss of diversity of citizenship or an
    ultimate judgment for less than the jurisdictional
    amount, may not have any jurisdictional significance at
    all. Still others affect only the supplemental jurisdiction
    of the court. If we are dealing with the first of these
    categories—a later decision that jurisdiction never existed
    at all over the case—there is nothing in the language of
    § 1447(c) that makes the timing of the district court’s
    jurisdictional determination significant. To the contrary,
    that statute makes it clear that defects other than the lack
    of subject matter jurisdiction must be raised within 30 days
    after the notice of removal, but a district court must
    remand a case “at any time before final judgment” if it
    Nos. 01-3081 & 01-3418                                      9
    concludes that it lacks subject matter jurisdiction. 
    28 U.S.C. § 1447
    (c). Thermtron instructed that § 1447(c) and (d)
    must be read together, as a unit; if that is true, then the
    most logical result would be to say that any remand
    based on a conclusion that jurisdiction was lacking at
    the time of removal is covered by § 1447(c), no matter
    when that fact becomes apparent, and thus that appel-
    late consideration of any such remand is barred by
    § 1447(d).
    The present case, in our view, is best regarded as one
    in which the court never had any jurisdiction over the
    claim. Granted, the court’s order is not as clear as it might
    be with respect to its own jurisdiction. In the order ad-
    dressing Illinois Central’s motion for reconsideration of
    the remand order, the judge actually said “this court
    likely enjoys subject matter jurisdiction over this ligita-
    tion,” but it then found that Illinois Central had waived
    any claim that complete preemption supported jurisdic-
    tion. We agree with our dissenting colleague that the
    jurisdiction of the court cannot be conferred by consent,
    and cannot in a certain sense be defeated by waiver. On
    the other hand, courts normally do not force parties to
    file particular defenses or claims; our reported cases are
    replete with examples of both claims and defenses that are
    waived. Illinois Central’s concession here that the only
    pertinent form of preemption that could be asserted
    was conflict preemption made it clear to the court that
    nothing but state law claims over which it had no juris-
    diction were before it. On that understanding, we read
    the court’s remand order as one based on an ultimate lack
    of its own subject matter jurisdiction over the claims. We
    note that the court did not say that it had jurisdiction over
    the claims under the supplemental jurisdiction statute,
    
    28 U.S.C. § 1367
    . But the fact that the court may have
    made a mistake about its jurisdiction over the remaining
    claims does not defeat the bar found in § 1447(d). See, e.g.,
    10                                  Nos. 01-3081 & 01-3418
    Gravitt, 
    430 U.S. at 723
    ; Briscoe v. Bell, 
    432 U.S. 404
    , 413
    n.13 (1977).
    But wait, the defendants argue: remember that Birming-
    ham Steel impleaded Amtrak under Rule 14 before the
    case was remanded. Even though the original case of A
    vs. B through n did not belong in federal court, what
    happens when defendant C files a third-party claim against
    Amtrak? Can the later third-party claim save federal
    jurisdiction over the whole suit? It cannot, for the reasons
    we explain in more detail in Part III of this opinion. For
    present purposes, however, the only important point is
    that the district court did not think that Amtrak saved
    its jurisdiction. As we just noted, the rule of nonreview-
    ability found in § 1447(d) means that even remands based
    on an erroneous belief in the lack of federal subject matter
    jurisdiction cannot be reviewed. Thermtron, 
    423 U.S. at 343
    . Otherwise the rule means nothing at all, because
    appeals will be taken and sustained in those cases where
    the district court made a mistake, and rejected in cases
    where the district court was correct. Even if the district
    court was wrong that it lacked jurisdiction over the claims
    that it remanded, the remand would nevertheless be
    jurisdictional. The only consequence of a mistake is that
    the case would proceed in state court even though it
    could have stayed in federal court. The drafters of § 1447(d)
    must have known that a few such mistakes would occur,
    but they were willing to accept them. In this case, if
    Amtrak found itself before a state court as a third-party
    defendant, it would have the right to remove its own case
    under federal question jurisdiction, because it is a federal
    entity in which the United States owns more than 50%
    of the outstanding stock. See 
    28 U.S.C. §§ 1331
    , 1349. It
    is true that this means it might take Amtrak two steps to
    remain in federal court instead of one, but it also means
    that Congress’s intent in enacting § 1349 will not be
    thwarted.
    Nos. 01-3081 & 01-3418                                    11
    Since the district court’s order does not indicate that
    it believed that either supplemental jurisdiction or the
    presence of Amtrak saved its jurisdiction, we find that
    the order of remand was indeed a jurisdictional one. That
    means it fell within the scope of § 1447(c) and thus that
    appellate review of the order is unavailable because of
    § 1447(d). Even if it is proper to rely on a temporal element
    to the ban on reviewability of jurisdictional remands in
    some circumstances, this is not one of them. To do other-
    wise would be to go significantly beyond the holdings of
    the Supreme Court and the language and purpose of
    § 1447(c) and (d). That is something we are not willing
    to do.
    III
    Because reasonable people might disagree over the best
    reading of the district court’s remand order, we think it
    prudent to address the alternative possibility that the
    court believed that it did have jurisdiction over the case
    after GE was dismissed, but that a remand was appropri-
    ate for some other reason (waiver by the defendants of
    the “complete preemption” theory of defense, or discretion-
    ary exercise of the power to decline supplemental juris-
    diction). If that reading is the correct one, then our appel-
    late jurisdiction would be secure and we would have
    to consider the merits of the district court’s decision.
    The starting point for that determination would be, once
    again, a jurisdictional inquiry. What, if anything, sup-
    ported the district court’s jurisdiction (as opposed to our
    own)? Diversity jurisdiction never existed, because citi-
    zens of Illinois appeared on both sides of the case. That
    means that jurisdiction over the case as a whole had to
    be based upon a federal question. GE claimed below
    and Illinois Central urges on appeal that the doctrine of
    “complete preemption” formed the basis of federal ques-
    12                                  Nos. 01-3081 & 01-3418
    tion jurisdiction in this case. But we simply cannot agree
    with the district court that “complete preemption” sup-
    ported the claims against either GE or the defendants
    who were left after GE was dismissed. That means, of
    course, that there was nothing in the case to which sup-
    plemental jurisdiction could attach. Our conclusion has
    nothing to do with the fact that the lawyers for the non-GE
    defendants appear to have disclaimed any reliance on
    complete preemption. This is a question on which appel-
    late review must be de novo, wholly apart from the dis-
    trict court’s decision, party waivers, or other stipulations.
    See Rogers v. Tyson Foods, Inc., 
    308 F.3d 785
    , 787 (7th Cir.
    2002).
    Federal law has not swept away all state law in this
    field, thereby making any claim the plaintiffs were trying
    to assert against GE necessarily federal. The discussions
    in our recent decisions in Tyson Foods, 
    supra,
     and Vorhees
    v. Naper Aero Club, Inc., 
    272 F.3d 398
     (7th Cir. 2001),
    and the Supreme Court’s latest word on the question in
    Sprietsma v. Mercury Marine, ___ U.S. ___, 
    123 S. Ct. 518
    ,
    526-30 (2002) (analyzing Federal Boat Safety Act’s pre-
    emptive effect), underscore how narrow the ill-named
    “complete preemption” doctrine is. As we stressed in Tyson
    Foods and Vorhees and as we stress again here, this
    does not mean that the federal statute in question—here
    the Locomotive Inspection Act—does not have preemptive
    force. To the contrary, ordinary conflict preemption may
    well exist with respect to some or all of the claims. But
    “conflict” preemption, as we noted in Vorhees, “is merely
    a defense to the merits of a claim. As such, according to
    the well-pleaded complaint rule, it does not provide a
    basis for federal question jurisdiction.” 
    272 F.3d at 403
    . We
    see nothing in the Locomotive Inspection Act to indicate
    that Congress “clearly intended completely to replace
    state law with federal law and create a federal forum” at
    the same time. 
    Id.
     That is what would be necessary to
    Nos. 01-3081 & 01-3418                                    13
    create “complete” or “field” preemption, as opposed to the
    more routine conflict preemption. Furthermore, the dis-
    trict court did not inquire into the question whether “the
    federal claim includes the same ingredients as the state
    claim and provides some recovery,” 
    id.,
     even though that
    is a prerequisite to finding “complete” preemption. See
    Rogers, 
    308 F.3d at 788
     (emphasizing the need to find a
    private right of action under the federal law in question).
    Both with respect to GE’s assertion of complete preemp-
    tion, where the district court erred, and with respect to
    the other defendants, as to whom the district court prop-
    erly recognized that only a question of conflict preemp-
    tion within the competence of the state courts was pre-
    sented, we believe that the district court itself lacked
    jurisdiction and thus that remand was required under
    § 1447(c). (Naturally, the existence of a federal defense to
    a state claim is not enough to support federal jurisdic-
    tion. See, e.g., Louisville & Nashville R.R. v. Mottley, 
    211 U.S. 149
    , 152 (1908).) Without the “complete preemption”
    theory to support the claims against the other defendants
    (and some certainly had nothing to do with locomotive
    manufacture or safety), there simply was no federal ques-
    tion.
    Even if federal jurisdiction was lacking at the outset, the
    question arises again whether jurisdiction over the case
    as a whole was somehow created when Birmingham
    Steel filed its third-party complaint against Amtrak. It
    is clear that an original, stand-alone lawsuit against
    Amtrak would fall within the original subject matter
    jurisdiction of the federal court, pursuant to 
    28 U.S.C. §§ 1331
     and 1349. Nevertheless, we must consider wheth-
    er the existence of a third-party complaint affects the
    court’s subject matter jurisdiction over the original ac-
    tion. We conclude that it does not. The Supreme Court
    considered a closely related problem in Holmes Group, Inc.
    v. Vornado Air Circulation Systems, Inc., 
    535 U.S. 826
    14                                 Nos. 01-3081 & 01-3418
    (2002), where the question was whether the Court of
    Appeals for the Federal Circuit had appellate jurisdic-
    tion over a case in which the complaint did not allege
    a claim under the federal patent law, but a compulsory
    counterclaim filed pursuant to Rule 13(a) of the Fed-
    eral Rules of Civil Procedure did. Because the Federal
    Circuit’s appellate jurisdiction extends only to claims
    that “arise under” the patent laws, the Court had to de-
    cide whether the counterclaim was enough to support
    hat jurisdiction. It answered no. 
    122 S. Ct. at 1893
    . Most
    of its discussion is a general consideration of the well-
    pleaded complaint rule, and thus is just as applicable to
    eliance on pleadings under Rule 14 as it was to plead-
    ings under Rule 13. If the plaintiff’s well-pleaded com-
    plaint is not based on a federal question, there is no
    § 1331 jurisdiction. Id. at 1893-94. To allow even a compul-
    sory counterclaim (which arguably presented a stronger
    case for jurisdiction than a permissive counterclaim or a
    permissive third-party action like the one before us) to
    govern jurisdiction would potentially defeat the plain-
    tiff’s choice of forum and “radically expand the class of
    removable cases.” Id. at 1894.
    The third-party claim might, however, permit the court
    to exercise supplemental jurisdiction over the original
    case, if everything arises out of the same constitutional
    case or controversy. But it is not clear in the present
    case (because the district court never considered the
    question) whether all the claims of the plaintiffs arose
    out of the same transaction or occurrence as the Birming-
    ham Steel third-party complaint against Amtrak. Without
    a better record, we cannot venture a guess on that point.
    This kind of constitutional “case or controversy” link is a
    prerequisite to the assertion of supplemental jurisdiction
    under 
    28 U.S.C. § 1367
    . See Board of Trustees, Sheet
    Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc.,
    
    212 F.3d 1031
    , 1037 (7th Cir. 2000). That statute author-
    Nos. 01-3081 & 01-3418                                   15
    izes supplemental jurisdiction only over claims “that are
    so related to claims in the action within such original
    jurisdiction that they form part of the same case or con-
    troversy under Article III of the United States Constitu-
    tion.” 
    28 U.S.C. § 1367
    (a). The statute goes on to permit
    supplemental jurisdiction over claims involving the
    joinder or intervention of additional parties, and so the
    fact that very few of the parties to the original action
    were involved in Birmingham Steel’s third-party com-
    plaint is not necessarily a bar to the exercise of supple-
    mental jurisdiction.
    Once again, however, we will assume for the sake of
    argument that the third-party claim against Amtrak is
    part of the same Article III case as the entire rest of
    the action. We cannot find that the district court was
    compelled to exercise supplemental jurisdiction over the
    remainder of the case, once Amtrak was before it in one
    capacity. The normal rule is that district courts have
    discretion to retain or remand supplemental claims. Groce
    v. Eli Lilly & Co., 
    193 F.3d 496
    , 500-01 (7th Cir. 1999).
    Here, Judge Holderman appears to have been proceeding
    on the assumption that he (probably) had jurisdiction
    over the original GE case. One possible interpretation of
    his remand order is that he was deciding what to do
    with the supplemental claims that remained after the GE
    case was resolved (although he used the language of
    waiver rather than this terminology). No matter what
    words he used, however, it is clear enough from his order
    that he thought the remainder of this case belonged in
    the state court, and thus he exercised whatever discretion
    he may have had and chose to remand those claims. If
    someone wants to litigate Amtrak’s derivative liability
    for this most unfortunate accident, he or she can do so in a
    separate federal court action. In fact, now that even
    more cases have been filed, it is possible that there will
    be an eventual consolidation of cases in the Northern
    16                                Nos. 01-3081 & 01-3418
    District of Illinois. As of now, however, there is no rule
    that permits federal courts to reach out and prevent
    state courts from proceeding with claims under state law
    that do not fall within the jurisdiction of the federal
    courts. The Anti-Injunction Act, 
    28 U.S.C. § 2283
    , has no
    exception for this situation, even though this type of
    consolidation might be efficient. Furthermore, we have
    just been reminded by the Supreme Court that a desire
    to protect federal jurisdiction is not enough to support
    the removal of essentially state law claims. See Syngenta
    Crop Prot., Inc. v. Henson, ___ U.S. ___, 
    123 S. Ct. 366
    (2002).
    IV
    For these reasons, we dismiss this appeal for want of
    appellate jurisdiction. In the alternative, we conclude
    that the district court’s remand was proper because of a
    lack of its own subject matter jurisdiction over the case,
    or (resolving all issues as generously as possible in Illi-
    nois Central’s favor), there was no abuse of discretion in
    the decision to relinquish these state law claims among
    non-diverse parties.
    APPEAL DISMISSED.
    Nos. 01-3081 & 01-3418                                     17
    RIPPLE, Circuit Judge, dissenting. As set forth in greater
    detail below, I believe that 
    28 U.S.C. § 1447
    (d) does not
    bar review of the present appeal. Furthermore, I believe
    that the district court erred in remanding this case to
    state court because of Illinois Central’s “waiver” of its
    right to a federal forum; a district court’s exercise of ju-
    risdiction over federal claims is mandatory and not sub-
    ject to waiver. I therefore respectfully dissent.
    I
    A.
    Although the majority opinion presents some back-
    ground, my own review of the record indicates that a
    more detailed recounting of the factual and procedural
    underpinnings of the issues presented would be helpful
    to the reader.
    The present case centers on a March 15, 1999, Amtrak
    passenger train collision near Bourbonnais, Illinois. The
    injured victims and the deceased victims’ estates (collec-
    tively the “plaintiffs”) filed more than fifty personal injury
    and wrongful death actions in the Circuit Court of Cook
    County, Illinois. The complaints alleged negligence, strict
    products liability and breach of implied warranties on the
    part of several defendants. General Electric (“GE”), which
    designed and manufactured the locomotive, also filed an
    action for declaratory judgment in the Northern District
    of Illinois seeking a judgment that suits arising out of
    the Bourbonnais accident were preempted by the Loco-
    motive Inspection Act, 
    49 U.S.C. § 20701
    , and that GE
    had complied with applicable federal law.1
    1
    The defendants are the manufacturers, owners and/or opera-
    tors of the apparatus and machines allegedly involved in the
    (continued...)
    18                                    Nos. 01-3081 & 01-
    3418 B. 1
    .
    GE removed the state cases to federal court and ar-
    gued that the Locomotive Inspection Act occupied the
    field of locomotive safety regulation and therefore pre-
    vented the plaintiffs from bringing negligence and strict
    liability claims in state court. All of the defendants con-
    sented to removal. On May 8, 2001, the plaintiffs moved
    to remand. The cases were consolidated with GE’s action
    for declaratory judgment. GE then moved to dismiss the
    claims against it, contending that they were barred by
    the Locomotive Inspection Act. On May 23, Birmingham
    Steel moved for leave to file a third-party complaint
    against Amtrak. The motion was granted, and Birming-
    ham Steel’s complaint was docketed.
    On June 12, 2001, the district court held a status hear-
    ing. It informed the parties that it had reached a decision
    on GE’s motion to dismiss the counts against it on the
    ground of preemption and on the plaintiffs’ motion to
    remand. The court further explained that it was circulat-
    ing a draft opinion to the other judges who had been
    assigned these cases. Just before this hearing, counsel for
    General Signal had informed the district court by letter
    1
    (...continued)
    accident. Illinois Central operates the tracks. Safetran Systems
    Corporation designed, manufactured and sold the grade cross-
    ing protection system. General Signal Company produced and
    installed the automatic crossing gates. Birmingham Steel Com-
    pany owned and operated a manufacturing facility adjacent to the
    accident site. Birmingham Steel loaded the rebar onto the trailer
    and permitted off-duty railroad cars to be stored on its land
    along the side of the tracks. Melco Transfer, Inc. owned and
    operated the truck. John Stokes was the truck’s driver. And,
    as noted above, GE designed, manufactured and sold the locomo-
    tive that pulled the City of New Orleans.
    Nos. 01-3081 & 01-3418                                       19
    that it was withdrawing its motion to dismiss, which had
    been based on the preemptive effect of the Federal Rail-
    road Safety Act (“FRSA”), 
    49 U.S.C. §§ 20101
     et seq. At
    the hearing, the following colloquy occurred between the
    district court and counsel for Illinois Central and Amtrak:2
    The Court: Is there any other defendant who desires
    to raise any of these [preemption] claims other than
    those who have already raised the issue of preemption?
    I notice that some defendants raised as affirmative
    defenses but did not move on the question, and I just
    want to know from the other defendants.
    Ms. Laing: Your Honor, Susan Laing on behalf of
    the Illinois Central and Amtrak. We have, in fact,
    raised preemption as to certain claims—
    The Court: Yes.
    Ms. Laing: —against the railroad but not all claims.
    And, therefore—
    The Court: Do you want me to address those, or do
    you want to just wait, as an affirmative defense.
    Ms. Laing: As a basis for asserting federal jurisdic-
    tion, I have taken no position one way or the other.
    The Court: All right.
    Ms. Laing: As for an affirmative defense, I have a
    very strong position that federal law will control and
    preempt those state-law claims.
    The Court: Okay. Well, perhaps as to those defen-
    dants, such as Amtrak, that have raised the issues
    2
    Because Amtrak’s time for answering the third-party com-
    plaint had not expired at the time of the hearing, Amtrak had
    not yet filed any papers with the district court and counsel had
    not entered an appearance on behalf of Amtrak.
    20                                   Nos. 01-3081 & 01-3418
    but have not moved, maybe my opinion will be helpful
    in understanding what I believe to be the application
    of the law. . . . Maybe I won’t just go ahead and individ-
    ually address it and say, well, Amtrak has raised as
    an affirmative defense certain issues to certain claims.
    I will just go ahead and address the claims that
    have been presented and briefed and then that won’t
    add to the clutter of the opinion, if that’s all right?
    Ms. Laing: It’s—obviously, I—again, if you’re asking
    my permission, it’s absolutely fine. I think that the
    issues are one and the same whether, in fact, federal
    law does preempt those areas. So, to that extent, if
    your opinion wants to address that, it probably would
    make most sense since everybody is here and all the
    cases are together.
    June 12, 2001 Tr. at 39-40.
    After the status hearing, Ms. Laing sent the court a let-
    ter dated June 12, 2001. This letter informed the court
    that, with respect to two of the cases subject to the court’s
    May 16, 2001, consolidation order, there had been no
    motion to remand. In those cases, Amtrak had been named
    as a defendant and had removed, asserting federal juris-
    diction under 
    28 U.S.C. §§ 1331
     and 1349. In the letter,
    Ms. Laing also made reference to the district court’s in-
    quiry about the cases that had been removed by General
    Signal but that were now before the court in General
    Signal’s motion to withdraw opposition to remand. The
    letter stated: “It is my understanding that counsel for
    General Signal will be providing you with the ‘definitive’
    list of those cases.” R.40. The record does not reveal when
    or whether General Signal provided such a list. By a
    minute order dated June 12 and entered on the docket
    on June 13, the district court granted General Signal’s
    motion to withdraw its motion for judgment on the plead-
    ings and its opposition to the plaintiffs’ motion to remand.
    Nos. 01-3081 & 01-3418                                    21
    As far as can be gleaned from the record, Ms. Laing’s letter
    was the last communication between Illinois Central
    and the district court before the court issued its decision.
    2.
    The district court issued its decision on June 26, 2001.
    The court initially noted that because “General Signal
    withdrew its opposition to plaintiffs’ motion to remand
    and its motion for judgment on the pleadings,” “this court
    does not consider the effect of the Federal Railroad Safe-
    ty Act . . . , upon which General Signal initially relied,
    and which contains an express preemption clause, on this
    court’s subject matter jurisdiction or the possible pre-
    emptive effect of the FRSA on plaintiffs’ claims.” R.44 at
    2-3 n.2.
    The court then analyzed GE’s complete preemption
    argument with respect to the Locomotive Inspection Act.
    It held that the Locomotive Inspection Act occupied the
    field of locomotive safety regulation and that, conse-
    quently, any state law cause of action touching on sub-
    jects of regulation under the Act implicitly states a fed-
    eral cause of action. In the court’s view, “the removed
    cases against General Electric fall within the broad scope
    of actions preempted by the [Locomotive Inspection Act].”
    R.44 at 9. Therefore, it continued, “all the claims asserted
    against General Electric in the removed cases are pre-
    empted by federal law.” 
    Id. at 14
    . Thus, the court concluded,
    GE had the right to remove these cases from state court.
    The court then dismissed the claims against GE without
    prejudice. Because the plaintiffs had not alleged any
    violation of federal law, the court also dismissed Count 2
    of GE’s action for declaratory judgment, which sought a
    judgment that GE had complied with applicable federal
    regulations.
    22                                 Nos. 01-3081 & 01-3418
    After both concluding that removal had been proper and
    dismissing the claims against GE, the district court re-
    manded the remainder of the cases to state court. “Because
    no other defendants have asserted federal preemption as
    a basis for removal or opposed the state court plaintiffs’
    motion to remand, all cases which were removed by Gen-
    eral Electric are hereby remanded forthwith to the Cir-
    cuit Court of Cook County.” R.44 at 21.
    3.
    Illinois Central filed a motion to reconsider under Rule
    59 on July 6, 2001. Illinois Central advanced two argu-
    ments in support of its motion. First, it contended that
    the district court had jurisdiction because of the presence
    of Amtrak, which had been added as a third-party defen-
    dant in a third-party complaint filed by Birmingham
    Steel on June 8, 2001. Second, Illinois Central submitted
    that the court had jurisdiction because the FRSA, like
    the Locomotive Inspection Act, occupied the field of rail-
    road safety completely; consequently, the district court
    had subject matter jurisdiction.
    The district court denied the motion to reconsider. It
    stated:
    This court agrees with Illinois Central that this court
    likely enjoys subject matter jurisdiction over this
    litigation, as recognized in the court’s June 26, 2001
    order. Nevertheless, this court finds that remand of
    these cases is warranted because Illinois Central has
    expressly waived federal preemption or other federal
    law as a basis for federal subject matter jurisdiction.
    R.51, Ex.E at 1. The court concluded that, in the above-
    quoted colloquy, counsel for Illinois Central waived federal
    jurisdiction by taking no position on whether the FRSA
    provided an independent basis for federal subject matter
    jurisdiction.
    Nos. 01-3081 & 01-3418                                         23
    The clear import of this exchange between counsel for
    Illinois Central and the court was that Illinois Central
    did not intend to assert federal subject matter jurisdic-
    tion in this court, but intended to raise its federal pre-
    emption defenses in the state court, or at least had
    no objection to this court remanding this litigation to
    state court.
    
    Id.
     The court took the view that our decision in Rothner
    v. City of Chicago, 
    879 F.2d 1402
    , 1416 (7th Cir. 1989),
    left open the possibility that the doctrine of waiver
    might apply in the removal context. The court did not
    address Illinois Central’s specific argument about Amtrak,
    but determined that Illinois Central had waived reliance
    on any ground of federal jurisdiction by its failure to
    respond to the plaintiffs’ motion to remand. Illinois Cen-
    tral filed a notice of appeal on August 8, 2001.3
    II
    APPELLATE JURISDICTION
    As the majority notes, the first issue before this court
    is whether we have jurisdiction to consider Illinois Cen-
    3
    On July 27, 2001, plaintiffs in the remanded action filed
    complaints arising out of the Bourbonnais collision against Am-
    trak in the United States District Court for the Northern District
    of Illinois. Illinois Central filed a motion under Rule 60(b)(6)
    seeking relief from the remand order, arguing that this develop-
    ment would lead to Amtrak’s filing third-party actions against
    the other defendants. The result, according to Illinois Central,
    would be parallel litigation proceeding in state and federal court,
    on the same issues, arising out of the same event and involv-
    ing the same parties. Thus, Illinois Central asked the district
    court to vacate its remand order to prevent this situation. The
    district court denied the motion. Illinois Central appealed, and
    the two appeals were consolidated in this court.
    24                                   Nos. 01-3081 & 01-3418
    tral’s challenge to the remand order. The plaintiffs con-
    tend that 
    28 U.S.C. § 1447
    (d) bars appellate review of the
    district court’s remand order. For the reasons set forth
    below, I believe that this court has jurisdiction over the
    appeal.
    A.
    The plaintiffs submit that appellate jurisdiction is barred
    by 
    28 U.S.C. § 1447
    (d). Section 1447(d) provides:
    An order remanding a case to the State court from
    which it was removed is not reviewable on appeal or
    otherwise, except 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).4
    Read in isolation, the plain language of § 1447(d) would
    seem to bar appellate jurisdiction. The Supreme Court,
    however, has interpreted § 1447(d) narrowly. The Court
    has ruled that Ҥ 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).” Things Remembered, Inc. v. Petrarca, 
    516 U.S. 124
    , 127 (1995). Section 1447(c) provides, in relevant
    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 be-
    fore final judgment it appears that the district court
    4
    Section 1443 concerns removal in civil rights cases and thus
    is inapplicable here.
    Nos. 01-3081 & 01-3418                                         25
    lacks subject matter jurisdiction, the case shall be
    remanded.
    
    28 U.S.C. § 1447
    (c). “As long as a district court’s remand
    is based on a timely raised defect in the removal proce-
    dure or on lack of subject-matter jurisdiction . . . a court
    of appeals lacks jurisdiction to entertain an appeal of
    the remand order under § 1447(d).” Things Remembered,
    
    516 U.S. at 127-28
    .5 The plaintiffs identify no defect in
    the removal procedure, or any other defect fitting the
    first sentence of § 1447(c).
    Attention to the development of the rule articulated
    in Things Remembered, both in the Supreme Court and
    in the courts of appeals, provides significant guidance to
    the analysis of this case. In Thermtron Products, Inc. v.
    Hermansdorfer, 
    423 U.S. 336
     (1976), the Supreme Court
    held that § 1447(d) did not bar appellate review of a dis-
    trict court’s remand order that was based on the court’s
    overburdened docket. See Thermtron, 
    423 U.S. at 345
    .
    The Court traced the history of § 1447(d) and concluded
    that Congress had intended to link § 1447(d) with § 1447(c).
    See id. at 346-51. After doing so, the Court concluded that
    “[t]here is no indication whatsoever that Congress in-
    tended to extend the prohibition against review to reach
    remand orders entered on grounds not provided by statute.”
    Id. at 350. Thus, “[s]ection 1447(d) is not dispositive of
    the reviewability of remand orders in and of itself.” Id. at
    5
    Things Remembered was decided before the 1996 revision to
    § 1447(c). Before 1996, the statute read “any defect in the removal
    procedure . . .” and now it reads “any defect other than lack of
    subject matter jurisdiction . . . .” Compare 
    28 U.S.C. § 1447
    (c)
    (2002 Supp.) with 
    28 U.S.C. § 1447
    (c) (1994). I do not believe this
    statutory amendment makes any difference in the present case,
    nor does it overrule the line of Supreme Court cases beginning
    with Thermtron Products, Inc. v. Hermansdorfer, 
    423 U.S. 336
    (1976).
    26                                 Nos. 01-3081 & 01-3418
    345. Appellate jurisdiction is proper when “the District
    Court’s order was based on grounds wholly different from
    those upon which § 1447(c) permits remand.” Id. at 344.
    In Quackenbush v. Allstate Insurance Co., 
    517 U.S. 706
    ,
    711-12 (1996), the Supreme Court concluded that appel-
    late jurisdiction was proper over an abstention-based
    remand order. The district court in Quackenbush had
    decided that abstention under the Burford doctrine was
    appropriate to prevent federal interference with the state’s
    regulation of an insurance company’s insolvency; the
    district court remanded the properly-removed action to
    state court on that ground. See Quackenbush, 
    517 U.S. at 709-10
    . The Supreme Court disposed of the § 1447(d)
    argument, noting that “[t]he District Court’s abstention-
    based remand order does not fall into either category of
    remand order described in § 1447(c), as it is not based on
    lack of subject matter jurisdiction or defects in removal
    procedure.” Id. at 712.
    The courts of appeals have elaborated on the rule an-
    nounced in Thermtron. For instance, in Benson v. SI
    Handling Systems, Inc., 
    188 F.3d 780
    , 782 (7th Cir. 1999),
    we reviewed a district court’s decision to remand to state
    court on the ground that successive removals are im-
    proper. We held: “Neither § 1447(c) nor anything else in
    the sections of the Judicial Code devoted to removal for-
    bids successive removals. The rule against them—if
    there is such a rule—is an extra-statutory judicial in-
    vention, and thus subject to the appellate process.” Id.
    In Clorox Co. v. United States District Court, 
    779 F.2d 517
    , 520 (9th Cir. 1985), the Ninth Circuit held that a
    remand on the ground that the removing party had
    waived its right to remove was reviewable on appeal.
    See also Pelleport Investors, Inc. v. Budco Quality Theatre,
    Inc., 
    741 F.2d 273
    , 277 (9th Cir. 1985). Several courts of
    appeals, including ours, have held that sua sponte re-
    mands based on defects in the removal procedure are
    Nos. 01-3081 & 01-3418                                    27
    outside of § 1447(c) and thus subject to appellate review.
    See In re Continental Cas. Co., 
    29 F.3d 292
    , 294 (7th Cir.
    1994); Whole Health Chiropractic v. Humana Med. Plan,
    
    254 F.3d 1317
    , 1319 (11th Cir. 2001); In re FMC Corp.
    Packaging Sys. Div., 
    208 F.3d 445
    , 450-51 (3d Cir. 2000);
    Page v. City of Southfield, 
    45 F.3d 128
    , 133 (6th Cir. 1995);
    In re Allstate Ins. Co., 
    8 F.3d 219
    , 223-24 (5th Cir. 1993).
    In setting the limits of our jurisdiction in conformity
    with the Supreme Court’s interpretive mandates in Therm-
    tron, Things Remembered and Quackenbush, we have
    said that, when a district court asserts jurisdiction but
    later events call that jurisdiction into question and ulti-
    mately result in a later remand, we have jurisdiction to
    review that remand order. See In re Shell Oil Co., 
    966 F.2d 1130
    , 1132 (7th Cir. 1992); In re Amoco Petroleum
    Additives Co., 
    964 F.2d 706
    , 708-09 (7th Cir. 1992); Bogle
    v. Phillips Petroleum Co., 
    24 F.3d 758
    , 761-62 (5th Cir.
    1994). In Shell Oil, we reviewed a district court’s deci-
    sion to remand a case, previously removed based on the
    court’s diversity jurisdiction, after the plaintiffs stipu-
    lated that they would seek damages below the jurisdic-
    tional amount. See Shell Oil, 
    966 F.2d at 1131-32
    . There,
    we held that resolution of the case depended on the rea-
    son for the district court’s remand. See 
    id. at 1132
    . “If
    the district court believed that the case was properly
    removed, but that the stipulation justified a remand, then
    we may review the order.” 
    Id.
     “If, however, the district
    court believed . . . that jurisdiction was missing at the
    outset, then 
    28 U.S.C. § 1447
    (d) would block any review,
    even though we might disagree with that decision.” Id.;
    accord Van Meter v. State Farm Fire & Cas. Co., 
    1 F.3d 445
    ,
    450 (6th Cir. 1993) (“[I]f a district court determines sub-
    ject matter jurisdiction to have existed at the time of
    removal, yet remands for alleged lack of subject matter
    jurisdiction based on some post-removal event(s), the
    remand order is not a Section 1447(c) remand order and
    28                                     Nos. 01-3081 & 01-3418
    is reviewable . . . .”). “When the district court appears to
    have asserted jurisdiction, the possibility that the re-
    mand order was issued pursuant to § 1447(c) for lack
    of jurisdiction is removed.” Lyons v. Alaska Teamsters
    Employer Serv., 
    188 F.3d 1170
    , 1173 (9th Cir. 1999). Stated
    another way, once the district court makes the unre-
    viewable decision under § 1447(c), unless new facts emerge
    that call the initial removal into question, any subse-
    quent remand order is subject to appellate review.6
    These decisions acknowledge that § 1447(c) is “necessarily
    tied to a temporal reference point, namely, the time of
    removal.” Van Meter, 
    1 F.3d at 450
    . “The dispositive
    question is: ‘When?’ Was there subject-matter jurisdic-
    tion at the time of removal, vanishing because of the
    change in the identity of the plaintiffs? If so, we . . . may
    review the remand order.” Amoco Petroleum, 
    964 F.2d at 708
    . “[W]e understand [Carnegie-Mellon University v.
    Cohill, 
    484 U.S. 343
     (1988),] to permit review when the
    district judge believes that removal was proper and
    that later developments authorize remand.” 
    Id.
     “If the
    district court believed that the case was properly removed,
    but that [subsequent events] justified a remand, then we
    may review the order.” Shell Oil, 
    966 F.2d at 1132
    .
    B.
    It is with these principles in mind that this court
    should evaluate the district court’s opinion to determine
    the precise grounds of its decision. If it was based on one
    of the grounds set forth in § 1447(c), review is barred. If,
    however, the district court grounded its decision in a rea-
    son not set forth in § 1447(c), then § 1447(d) does not
    prohibit review by this court.
    6
    The majority reads these cases as creating a narrow exception.
    Nos. 01-3081 & 01-3418                                    29
    A “plain and common sense reading” of the district court’s
    June 26 opinion is the starting point for this analysis.
    Heaton v. Monogram Credit Card Bank, 
    231 F.3d 994
    ,
    997 (5th Cir. 2000). The removing defendant, GE, removed
    this case from state court on the ground that the Loco-
    motive Inspection Act completely preempted any state
    regulation of locomotive safety; therefore, the court con-
    cluded, removal was proper. The district court agreed
    that the Locomotive Inspection Act occupied completely
    the field of locomotive safety and therefore permitted
    removal on the basis of federal question jurisdiction. Had
    the district court determined that this Act did not oc-
    cupy the field of locomotive safety and that no other
    ground for removal was present, and remanded on those
    grounds, our review would be barred by § 1447(d). However,
    after resolving the jurisdictional issue in favor of GE, the
    court proceeded to grant GE’s motion to dismiss, a deci-
    sion also based on the ground of preemption. At this point,
    GE was no longer a party to the case.
    The district court then turned to the remainder of the
    case. Another defendant, General Signal, had maintained
    that the FRSA preempted completely the plaintiffs’ claims
    and therefore served as a basis for removal to federal
    court. After the plaintiffs filed a motion to remand, Gen-
    eral Signal initially filed an opposition and moved for
    judgment on the pleadings on the ground of complete
    preemption. However, General Signal later withdrew its
    opposition to the remand and apparently withdrew from
    the litigation pursuant to a settlement. The district court
    then remanded the remaining cases to state court “[b]e-
    cause no other defendants have asserted federal preemp-
    tion as a basis for removal or opposed the state court
    plaintiffs’ motion to remand. . . .” R.44 at 21. Notably, the
    court did not remand the case because it believed that, once
    GE was dismissed, federal subject matter jurisdiction
    had been lost. Nor did it hold that there was not complete
    30                                  Nos. 01-3081 & 01-3418
    preemption under the FRSA, as General Signal had urged
    prior to its withdrawal. Indeed, the court specifically noted
    that it believed that it had subject matter jurisdiction. In
    its order denying Illinois Central’s motion to reconsider, it
    stated:
    This court agrees with Illinois Central that this court
    likely enjoys subject matter jurisdiction over this
    litigation, as recognized in the court’s June 26, 2001
    order. Nevertheless, this court finds that remand of
    these cases is warranted because Illinois Central has
    expressly waived federal preemption or other federal
    law as a basis for federal subject matter jurisdiction.
    R.51, Ex.E at 1.
    The district court therefore made clear that its remand
    was not based on § 1447(c), but on an extra-statutory, or
    non-statutory ground—the election of the remaining par-
    ties not to persist in the position taken by General
    Signal prior to its withdrawal from the litigation that the
    FRSA totally preempted the field of railway safety. Cf. In
    re Shell Oil Co., 
    631 F.2d 1156
    , 1157 (5th Cir. 1980)
    (holding “that the ban on reviewability contained in
    § 1447(d) is not applicable where the trial judge articu-
    lated a reason for remanding the case that is not found in
    § 1447(c)”).
    Assessing the district court’s statements in the proce-
    dural context in which they arose, I cannot agree with
    the majority that “[t]he present case . . . is best regarded
    as one in which the court never had any jurisdiction
    over the claim.” See supra at 9. The district court did not
    conclude that it lacked the authority to decide the case.
    It accepted jurisdiction and resolved one aspect of the
    case when it determined that the state claims against GE
    were preempted by the Locomotive Inspection Act. It then
    reviewed the remainder of the case. It decided to remand
    the case, not because it believed that it lacked juris-
    Nos. 01-3081 & 01-3418                                        31
    diction, but because no remaining party continued to as-
    sert another ground for removal. The court did not cite
    § 1447(c) as a basis for its action. Indeed, it stated ex-
    plicitly that it did not believe that it lacked jurisdiction.
    The district court remanded the case on the ground of
    waiver, a ground not listed in § 1447(c). “Neither § 1447(c)
    nor anything else in the sections of the Judicial Code
    devoted to removal” authorizes a remand for waiver. See
    Benson, 
    188 F.3d at 782
     (noting that there was nothing
    in the Judicial Code forbidding successive removals and
    thus the court of appeals had jurisdiction to review the
    district court’s decision to remand on that ground). Such a
    rule would be “an extra-statutory judicial invention, and
    thus subject to the appellate process.” 
    Id.
     Therefore,
    contrary to the view taken by my colleagues, I be-
    lieve that this court has jurisdiction over this appeal.7
    III
    REMAND
    Because I believe this court has appellate jurisdiction,
    I next must consider Illinois Central’s contention that
    the district court should not have remanded the case to
    state court. The district court stated in its order denying
    Illinois Central’s motion to reconsider that “[t]his court
    agrees with Illinois Central that this court likely enjoys
    subject matter jurisdiction over this litigation . . . . Never-
    theless, this court finds that remand of these cases
    7
    Even if the district court concluded that there was no longer a
    federal question in the case, the court would be called upon to
    make a supplemental jurisdiction determination under 
    28 U.S.C. § 1367
    . Such a decision to remand under § 1367 would also be
    subject to appellate review. See Carnegie-Mellon, 
    484 U.S. at
    355 n.11; Hudson United Bank v. LiTenda Mortgage Corp., 
    142 F.3d 151
    , 157 (3d Cir. 1998).
    32                                     Nos. 01-3081 & 01-3418
    is warranted because Illinois Central has expressly
    waived federal preemption or other federal law as a basis
    for federal subject matter jurisdiction.” R.51, Ex.E.
    In this court, Illinois Central claims that there are two
    bases for the district court’s jurisdiction and that the
    district court incorrectly ignored both. First, Illinois Cen-
    tral contends that, because Amtrak was a party to the
    litigation, having been added by Birmingham Steel’s third-
    party complaint, the court had federal question juris-
    diction under 
    28 U.S.C. § 1331
    . Second, Illinois Central
    argues that the FRSA occupies the field of railroad safety;
    therefore the plaintiffs’ claims, although styled as state
    law tort actions, were really federal claims that invoked
    the district court’s federal question jurisdiction.
    A.
    The district court was confronted with a highly com-
    plex, unusual and fluid situation. Yet, after reflection, I
    must conclude that the court misapprehended the lim-
    itations on its authority to remand and its corollary re-
    sponsibility to exercise jurisdiction over federal claims. It
    appears that this misstep may be due to a failure to
    distinguish sufficiently the criteria governing removal
    from the situations in which a remand is permitted.8 The
    Fifth Circuit has had occasion to explain this distinction:
    8
    In my view, the majority attaches far too little significance to
    this distinction. See supra at 13-15. The question before this
    court is not whether a third party complaint, with Amtrak as
    the third-party defendant, initially can be removed to federal
    court; the question is whether a third-party complaint against
    Amtrak, that originated in district court, can be remanded to
    state court given the statutory restrictions on remand. This
    question is addressed infra at Part III.B.
    Nos. 01-3081 & 01-3418                                  33
    Unquestionably, a party may implicitly waive its right
    to remove a case by failing timely to file a notice of
    removal. Likewise, a party may implicitly waive its
    right to contest the removal of a case on procedural
    grounds by failing timely to move for remand. Never-
    theless, the ability of a party to remove a case and
    the ability of a court to remand a case that has been
    properly removed by a party, are distinct concepts not
    necessarily subject to the same rules. Although parties
    may waive their rights to remove a case or to contest
    the removal procedure, they may neither confer sub-
    ject matter jurisdiction on the district court nor strip
    it of such jurisdiction by agreement or waiver. The
    authority of a district court to remand a properly
    removed case is dependent on the nature of the
    claims which the case comprises and the nature of
    the district court’s jurisdiction over those claims. The
    fact that the FDIC waived its right to remove the
    instant case is irrelevant to the determination of
    whether the case should have or could have been
    remanded once it had been properly removed by an-
    other party who had not waived the right to remove.
    Buchner v. FDIC, 
    981 F.2d 816
    , 818 (5th Cir. 1996) (cita-
    tions omitted). Consequently, the inquiry this court
    must address is whether the district court had the author-
    ity to remand the third-party action involving Amtrak in
    the circumstances presented here.
    The authority of a district court to remand a case is
    not discretionary. Indeed, as explained by the Supreme
    Court in Thermtron Products, Inc. v. Hermansdorfer, 
    423 U.S. 336
    , 351 (1976), that power is quite circumscribed:
    “[W]e are not convinced that Congress ever intended to
    extend carte blanche authority to the district courts to
    revise the federal statutes governing removal by remand-
    ing cases on grounds that seem justifiable to them but
    34                                  Nos. 01-3081 & 01-3418
    which are not recognized by the controlling statute.” The
    Court reinforced and elaborated on its Thermtron decision
    in Carnegie-Mellon University v. Cohill, 
    484 U.S. 343
    (1988):
    The Thermtron decision was a response to a clearly
    impermissible remand, of a kind very different from
    that at issue here. In Thermtron, the District Court had
    no authority to decline to hear the removed case. The
    court had diversity jurisdiction over the case, which
    is not discretionary. Thus the District Court could
    not properly have eliminated the case from its docket,
    whether by a remand or a dismissal.
    
    Id. at 355-56
    . I believe, therefore, that this court must
    turn to the statutory bases for remand to determine if a
    remand was appropriate in the circumstances presented
    here.
    B.
    1.
    There are three statutory provisions that address a
    district court’s authority to remand. One grant of remand
    authority is found among the removal provisions, 
    28 U.S.C. § 1447
    (c). Section 1447(c) states:
    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 be-
    fore final judgment, it appears that the district court
    lacks subject matter jurisdiction, the case shall be
    remanded.
    
    28 U.S.C. § 1447
    (c). It is well established that the dis-
    trict court’s jurisdictional inquiry for purposes of § 1447(c)
    is determined as of the time the removal petition is filed.
    Nos. 01-3081 & 01-3418                                       35
    See Gossmeyer v. McDonald, 
    128 F.3d 481
    , 487 (7th Cir.
    1997) (“[W]hether subject matter jurisdiction exists is a
    question answered by looking at the complaint as it
    existed at the time the petition for removal was filed.”
    (emphasis in original)).
    2.
    
    28 U.S.C. § 1441
     also speaks to a district court’s author-
    ity to remand. Specifically, § 1441(c) provides that
    [w]henever a separate and independent claim or cause
    of action within the jurisdiction conferred by section
    1331 of this title [federal question jurisdiction] is
    joined with one or more otherwise non-removable
    claims or causes of action, the entire case may be
    removed and the district court may determine all
    issues therein, or, in its discretion, may remand all
    matters in which state law predominates.
    
    28 U.S.C. § 1441
    (c). By its terms, § 1441(c) applies only
    to “separate and independent” claims. In American Fire &
    Casualty Co. v. Finn, 
    341 U.S. 6
    , 12 (1951), the Su-
    preme Court explained that “[t]he addition of the word
    ‘independent’ gives emphasis to congressional intention to
    require more complete disassociation between the fed-
    erally cognizable proceedings and those cognizable only
    in state courts before allowing removal.”9 The claims to
    which § 1441 applies is further limited by the requirements
    that the claims be “joined” and “removed.” Section 1441(c)
    applies only to claims that were joined with a federal
    9
    The requirements of separateness and independence have
    caused this court to question whether any third-party complaints
    can be removed pursuant to this section, because they most
    often are “dependent,” if not “parasitic,” to the federal claim.
    See Thomas v. Shelton, 
    740 F.2d 478
    , 486 (7th Cir. 1984).
    36                                    Nos. 01-3081 & 01-3418
    question claim while in state court, cf. First National Bank
    of Pulaski v. Curry, 
    301 F.3d 456
    , 465 (6th Cir. 2002)
    (interpreting “joined” “narrowly to apply only to claims
    joined by the plaintiff in the original state court action”),
    and also that were “removed”; § 1441(c) does not en-
    compass claims added in federal court.
    3.
    
    28 U.S.C. § 1367
     provides a final statutory basis for
    remanding a claim to state court.10 Under § 1367(c), a court
    may decline to exercise supplemental jurisdiction over
    a claim that is related to the underlying action if “the
    claim substantially predominates over the claim or claims
    over which the district court has original jurisdiction,” or
    if “the district court has dismissed all claims over which
    it has original jurisdiction.” 
    28 U.S.C. § 1367
    . Although
    § 1367, strictly read, does not speak in terms of a “remand,”
    § 1367 codifies the common-law doctrine of pendent juris-
    diction. In Carnegie-Mellon, the Supreme Court estab-
    lished the right of a district court to remand, as opposed
    to only dismiss, a pendent claim:
    10
    Section 1367 codified the principles of pendent jurisdiction
    discussed by the court in Carnegie-Mellon. In that case, the Su-
    preme Court held that a district court had the discretion to
    remand pendent state-law claims once the federal claims on
    which a proper removal were based dropped out. See Carnegie-
    Mellon, 
    484 U.S. at 357
    . “The discretion to remand enables dis-
    trict courts to deal with cases involving pendent claims in the
    manner that best serves the principles of economy, convenience,
    fairness, and comity which underlie the pendent jurisdiction
    doctrine.” 
    Id.
     The Supreme Court specifically noted in Carnegie-
    Mellon that “the remand authority conferred by the removal
    statute and the remand authority conferred by the doctrine
    of pendent jurisdiction overlap not at all.” Carnegie-Mellon, 
    484 U.S. at
    355 n.11.
    Nos. 01-3081 & 01-3418                                         37
    [A] district court has discretion to remand to state
    court a removed case involving pendent claims upon
    a proper determination that retaining jurisdiction
    over the case would be inappropriate. The discretion
    to remand enables district courts to deal with cases
    involving pendent claims in the manner that best
    serves the principles of economy, convenience, fairness,
    and comity which underlie the pendent jurisdiction
    doctrine.
    Carnegie-Mellon, 
    484 U.S. at 357
    . The power to remand,
    however, is limited to claims over which the district court
    has only “supplemental” jurisdiction; the power does not
    extend to claims over which the district court has orig-
    inal jurisdiction. See In re City of Mobile, 
    75 F.3d 605
    , 607
    (11th Cir. 1996); Borough of W. Mifflen v. Lancaster,
    
    45 F.3d 780
    , 787 (3d Cir. 1995).11
    Thus, absent a claim for abstention, a district court
    may remand when one of three situations arises: 1) it
    discovers that it lacked subject matter jurisdiction for
    the initial removal; 2) it concludes that state law pre-
    dominates in a removed claim that is separate and inde-
    pendent from the removed federal question claim; or 3)
    it determines that it should not exercise supplemental
    jurisdiction over a state law claim.
    C.
    Evaluating the district court’s action against the statu-
    tory options outlined above, I believe that the district
    11
    The district court also may remand, as opposed to dismissing,
    a case on abstention grounds if “the relief being sought is equita-
    ble or otherwise discretionary.” Quackenbush v. Allstate Ins.
    Co., 
    517 U.S. 706
    , 731 (1996). However, there is no claim that
    considerations of abstention motivated, or could motivate, the
    district court’s decision to remand in the present action.
    38                                  Nos. 01-3081 & 01-3418
    court’s remand order may have “seem[ed] justifiable” to
    the court, but was not cognizable under “the controlling
    statute[s].” Thermtron, 
    423 U.S. at 351
    . First, § 1447(c)
    does not provide a basis for the remand ordered by the
    district court. As noted previously, § 1447(c) is “necessarily
    tied to a temporal reference point, namely, the time of
    removal.” Van Meter v. State Farm Fire & Cas. Co., 
    1 F.3d 445
    , 450 (6th Cir. 1993). With respect to the initial re-
    moval, the district court agreed with the removing defen-
    dant, GE, that the Locomotive Inspection Act occupied
    completely the field of locomotive safety, that this complete
    preemption provided a basis for federal question jurisdic-
    tion and, therefore, that removal was proper. Consequently,
    the district court did not, and could not, rely on § 1447(c)
    to remand Amtrak’s claim after it made the determina-
    tion that initial removal was proper.
    Neither can the district court’s order be grounded in
    § 1441(c). Section 1441(c) allows a district court to re-
    mand only “separate and independent” claims joined
    and removed with a federal question claim. However, as a
    third-party claim, the claim against Amtrak is not sep-
    arate and independent from the actions brought by the
    plaintiffs against the original defendants. More fundamen-
    tally, the action was not “joined” and “removed” with the
    action against GE; the third-party action against Amtrak
    was instituted in district court.
    Finally, the district court’s remand order finds no sup-
    port in § 1367. Section 1367 allows a district court to
    remand a claim based on the court’s “supplemental juris-
    diction.” The authority to remand pursuant to § 1367 does
    not encompass claims over which the district court
    has federal question jurisdiction. Here, the presence of
    Amtrak in the litigation constituted a valid basis for fed-
    eral question jurisdiction. Because Amtrak is a federally
    chartered corporation in which the United States owns
    more than 50% of the outstanding stock, it may litigate in
    Nos. 01-3081 & 01-3418                                   39
    federal court. See 
    28 U.S.C. § 1349
    ; see, e.g., Wyant v.
    Nat’l R.R. Passenger Corp., 
    881 F. Supp. 919
    , 920 (S.D.N.Y.
    1995) (stating that it is “well-settled” that federal courts
    have jurisdiction over cases in which Amtrak is a party).
    Cases involving federally chartered corporations such as
    Amtrak arise under the laws of the United States and,
    therefore, come within the court’s federal question juris-
    diction, 
    28 U.S.C. § 1331
    . See Wayne v. Tenn. Valley Auth.,
    
    730 F.2d 392
    , 397 (5th Cir. 1984) (“[A] claim against
    a wholly owned federal corporation created under an Act
    of Congress, such as TVA, falls within the general grant
    of federal question jurisdiction found in § 1331 . . . .”);
    Hollus v. Amtrak Northeast Corridor, 
    937 F. Supp. 1110
    ,
    1113-14 (D.N.J. 1996) (stating that “federal courts have
    subject matter jurisdiction over any action involving Am-
    trak” and that jurisdiction is based on the “federal ques-
    tion” statute); In re Rail Collision Near Chase, Maryland
    on January 4, 
    1987 Litig., 680
     F. Supp. 728, 731 (D. Md.
    1987) (“Congress created Amtrak and Conrail as private
    corporations under state law, but subject to federal ques-
    tion jurisdiction as long as the federal government held
    majority ownership.”). Consequently, the district court
    had original federal question jurisdiction over the claims
    involving Amtrak. Because the district court’s jurisdic-
    tion over the claim is original, and not supplemental,
    § 1367 cannot provide a basis for remand of that claim.
    D.
    In addition to having jurisdiction because of Amtrak’s
    presence, the district court also had been presented with
    the contention that the FRSA completely preempted the
    field of railroad safety and, therefore, provided an inde-
    pendent basis for retaining jurisdiction. The district court
    made it clear in denying the post-trial motion that it did
    not consider that claim to be a frivolous one. It also
    40                                  Nos. 01-3081 & 01-3418
    was incumbent on the district court to determine wheth-
    er the FRSA did, in fact, preempt the field of railroad
    safety—thereby providing an independent basis for federal
    jurisdiction—and, if so, to retain jurisdiction over the
    claims affected. See Buchner v. FDIC, 
    981 F.2d 816
    , 821
    (5th Cir. 1993) (discussed infra at Part III.E.).
    E.
    The plaintiffs submit that, even if the district court had
    subject matter jurisdiction over the third-party claim
    against Amtrak, this court should affirm the district
    court’s judgment on the basis of waiver. However, because
    the district court had a duty to exercise its subject mat-
    ter jurisdiction, I believe the decision to remand to state
    court on the ground of waiver was erroneous.
    Two decisions—the Fifth Circuit’s decision in Buchner
    v. FDIC, 
    981 F.2d 816
     (5th Cir. 1993), and the Ninth
    Circuit’s decision in Brockman v. Merabank, 
    40 F.3d 1013
    (9th Cir. 1994),—not only provide guidance with respect
    to the issue of waiver, but also speak to the broader issue
    of a district court’s remand authority. In Buchner, the
    FDIC sued the Buchners in state court to collect monies
    they owed a bank under the FDIC’s receivership. See
    Buchner, 981 F.2d at 817. The Buchners asserted coun-
    terclaims against the FDIC; the FDIC then removed the
    case to the district court. See id. Removal was untimely,
    however, and the district court remanded the case to
    state court. See id. After amending their pleadings several
    times, the Buchners added an FBI agent and the Dallas
    office of the FBI to the case by filing a motion for sanctions
    against them; the agent timely removed the entire case
    to federal court pursuant to 
    28 U.S.C. §§ 1442
    (a)(1) and
    1446(b). See 
    id.
     The Buchners moved to dismiss their
    claims against the FBI and moved to remand the case
    after those parties were dismissed. See 
    id. at 818
    . The
    Nos. 01-3081 & 01-3418                                    41
    FDIC opposed the motion to remand, but the district
    court found that it had waived its right to removal. See
    
    id.
     The court declined to exercise supplemental jurisdic-
    tion over the remainder of the case and remanded it to
    state court. See 
    id.
     The FDIC appealed, and the Fifth
    Circuit reversed. See 
    id. at 820
    .
    Noting the general principle that parties may neither
    confer jurisdiction on a federal court, nor take it away, see
    Buchner, 981 F.2d at 818, the court first determined that
    jurisdiction was proper in the district court because the
    FDIC was a party. See id. at 819. The court then as-
    sessed the scope of the district court’s statutory power to
    remand under 
    28 U.S.C. §§ 1441
    (c) and 1447(c).
    Under these two sections, the district court has gen-
    eral authority to remand a case under any of the
    following circumstances: 1) it has discretion to re-
    mand state law claims that were removed along with
    one or more federal question claims; 2) it must act on
    a timely motion to remand based on a defect in the
    removal procedure; and 3) it must remand a case
    over which it has no subject matter jurisdiction.
    
    Id.
     Finally, the court noted that, under Carnegie-Mellon,
    
    484 U.S. at 357
    , a district court could remand a case
    after all the federal claims dropped out, leaving only state-
    law claims. See id. at 820. The court determined that
    none of those remand options were present because the
    district court had original subject matter jurisdiction
    over the case under 
    28 U.S.C. § 1331
    . See 
    id. at 819-20
    . In
    conclusion the court stated:
    The case thus having been correctly removed, the
    district court could only have remanded it under
    authority of one of the limited number of enumerated
    grounds for remand, none of which are present in the
    instant case. The district court has subject matter
    jurisdiction over all of the Buchners’ claims against
    42                                  Nos. 01-3081 & 01-3418
    the FDIC by virtue of 
    12 U.S.C. § 1819
    (b)(2)(A) and
    
    28 U.S.C. § 1331
    . Subject matter jurisdiction can
    neither be conferred nor destroyed by the parties’
    agreement or waiver. Here the FDIC’s earlier waiver
    of its right to remove the case cannot affect the courts
    subject matter jurisdiction over the Buchners’ claim
    against the FDIC. . . . As all of the Buchners’ claims
    against the FDIC are treated as arising under the
    laws of the United States, the district court’s subject
    matter jurisdiction over those claims is mandatory so
    it has no discretion to remand them to state court.
    
    Id. at 821
    .
    In Brockman v. Merabank, 
    40 F.3d 1013
    , 1017 (9th Cir.
    1994), the Ninth Circuit concurred with the Fifth Circuit’s
    analysis in Buchner. In Brockman, the plaintiff sued
    Merabank, which was later placed in receivership by the
    Resolution Trust Corporation (“RTC”). See 
    id. at 1015
    . The
    plaintiff amended her complaint to add the RTC. See 
    id.
     She
    later filed a third amended complaint, which added the
    FDIC as a party. See 
    id.
     The FDIC removed the action, and
    then moved to dismiss the complaint. See 
    id.
     The district
    court granted the motion, and the FDIC was dismissed
    as a party. See 
    id.
     Then, at a “pretrial conference, the
    district court sua sponte ordered the case remanded to
    state court for lack of jurisdiction. The court reasoned
    that it lacked jurisdiction because the party seeking
    removal, the FDIC, had been dismissed from the case.” 
    Id.
    “In a subsequent order, the court stated that ‘[i]n its
    discretion, the Court could have retained the case but
    a decision was made not to retain it.’ ” 
    Id.
    The RTC appealed, and the Ninth Circuit reversed. See
    Brockman, 
    40 F.3d at 1017
    . First, the court found that
    remand was not warranted by § 1447(c) because the
    district court “did not lack subject matter jurisdiction.” Id.
    at 1016. The court further held: “A remand order was
    Nos. 01-3081 & 01-3418                                     43
    not authorized by § 1441(c) either. The claims against the
    non-RTC defendants are not ‘separate and independent.’ ”
    Id. at 1016-17. The Ninth Circuit determined that the
    district court had no “jurisprudential authority” to re-
    mand: “Like diversity jurisdiction, original jurisdiction is
    not discretionary. Thus, the district court could neither
    dismiss the entire case for lack of jurisdiction nor re-
    mand it.” Id. at 1017. The Ninth Circuit also rejected
    the plaintiff’s argument that the RTC had waived its right
    to proceed in federal court by its failure to remove. “Al-
    though the RTC waived its right to seek removal, it did
    not waive its right to a federal forum.” Id. The court
    found that the “district court’s retention of this case was
    mandatory, not discretionary.” Id.
    Brockman and Buchner make clear that the district
    court has an independent obligation to determine wheth-
    er it has subject matter jurisdiction. If that examination
    reveals the existence of subject matter jurisdiction, the
    exercise of that jurisdiction is mandatory, not discre-
    tionary, and the actions of a party cannot affect the
    court’s responsibility to exercise its jurisdiction. Conse-
    quently, because the district court had subject matter
    jurisdiction over the claim involving Amtrak, the district
    court’s exercise of that jurisdiction was mandatory, and
    the actions of Amtrak’s counsel did not divest the court of
    its responsibility to adjudicate the claim at issue.
    In sum, I believe that this court has jurisdiction over the
    present appeal because 
    28 U.S.C. § 1447
    (d) does not
    bar appellate review. Furthermore, I believe that the
    district court erred in remanding the case on the ground
    that Illinois Central had waived its right to a federal forum.
    The court had jurisdiction over the third-party claim
    against Amtrak; the exercise of jurisdiction over that claim
    is mandatory and not subject to waiver. Even if the dis-
    trict court was justified in overlooking the presence of
    Amtrak as an initial matter in the June 26 ruling, it was
    44                                 Nos. 01-3081 & 01-3418
    made aware of Amtrak’s presence and the jurisdictional
    implications of that presence in Illinois Central’s Rule 59
    motion to reconsider.
    For these reasons, I would remand this case to the dis-
    trict court to retain jurisdiction of the claim against
    Amtrak and then to consider the appropriate disposition
    of the remainder of the claims before it. Specifically, I
    believe that the district court ought to determine whether
    the state law claims are preempted by the FRSA. If they
    are preempted, the district court should retain jurisdiction
    of the claims; if they are not, the district court must
    determine whether, according to the criteria set forth in
    28 U.S.C § 1367, it ought to retain jurisdiction over the
    claims or remand them to the state court. Consequently,
    I would reverse the judgment of the district court and
    remand the case for further proceedings.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—3-6-03