Second Circuit Holds that Remand Orders not Authorized by 1447(c) Are Reviewable

Per the Second Circuit in Mitskovski v. Buffalo and Fort Erie Public Bridge Authority, --- F.3d ----, 2006 WL 51390 (2d Cir. Jan. 11, 2006):

Our initial issue is whether this Court has appellate jurisdiction over the appeal from the District Court's remand order.FN1 Despite the broad language of 28 U.S.C. § 1447(d) limiting appeal of remand orders,FN2 it is settled that section 1447(d) FN3 precludes appeal only of remand orders authorized by section 1447(c). See Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976); Hamilton v. Aetna Life and Casualty Co., 5 F.3d 642, 644 (2d Cir.1993).

We have interpreted section 1447(c) to authorize a remand for either a procedural defect asserted within 30 days of the filing of notice of removal or a lack of subject matter jurisdiction. See Hamilton, 5 F.3d at 644. Such remands, because they are authorized by section 1447(c), are barred from review by section 1447(d). See id. However, “an order remanding on procedural grounds either upon an untimely motion or sua sponte more than 30 days after removal, since such order is not authorized by § 1447(c), is reviewable.” Id.

In the pending case, the Plaintiffs filed a timely motion asserting an alleged procedural defect, and the District Court granted the motion, but did so more than 30 days after removal and on a ground identified by the Court on its own motion-noncompliance with a local rule. The Plaintiffs contend that the remand order is not appealable because the District Court granted a timely motion that had asserted a procedural defect. The Authority responds that the remand order is appealable because the order was based on a ground identified by the Court on its own motion more than 30 days after removal.

We think the Authority has the better of the dispute on this novel issue. The Congressional scheme contemplated by the interplay between sections 1447(c) and 1447(d) emphasizes prompt return to the state court of cases improperly removed and prompt processing of cases in the federal court of cases not authorized to be remanded. Toward that end, a motion asserting a procedural defect must be made within 30 days of removal, and a court of appeals may not delay the litigation by reviewing the grant of such a motion. In the same vein, a district court may not act to remand on its own motion more than 30 days after removal in the absence of a party's timely remand motion, and if it does so, a court of appeals may review and correct the improper remand. It is more consistent with this scheme to review a remand order based on a ground identified by a district court more than 30 days after removal than to preclude review because the court acted upon a timely filed motion asserting a procedural defect other than the one the court thought warranted a remand. We understand Hamilton to permit review not only of a remand order issued by a district court on its own motion more than 30 days after removal in the absence of a party's timely remand motion, but also of a remand order issued by a district court on a ground identified by a district court on its own motion more than 30 days after removal even though a party has filed a timely motion to remand.