On June 10, 2013, the US Court of Appeals for the Fifth Circuit issued an opinion, holding that 28 U.S.C. § 1447(d) precluded appellate review of a remand order issued under Section 1447(e).

After defendants removed the case on diversity jurisdiction grounds, the district court permitted joinder of several non-diverse defendants and remanded the case under 28 U.S.C. § 1447(e). Defendants appealed the district court's remand order and argued that the joinder ruling was a prohibited exercise of supplemental jurisdiction.

The Fifth Circuit dismissed the case for lack of appellate jurisdiction because the removal statute states that an order remanding a case to the state court it was removed from is not reviewable on appeal (except under conditions that did not apply). The court considered the US Supreme Court's reasoning in Powerex v. Reliant Energy Services, which held that a loss of subject matter jurisdiction that occurs after removal under Section 1447(c) is barred from appellate review by Section 1447(d). The Fifth Circuit concluded that if Section 1447(d) precludes appellate review of Section 1447(c) remand orders for lack of subject matter jurisdiction after removal, then the same must be said for Section 1447(e) remand orders. The court therefore found that 28 U.S.C. § 1447(d) precludes appellate review of a remand order issued under Section 1447(e), joining the US Courts of Appeals for the Fourth, Sixth, Seventh, Ninth and Eleventh Circuits.

Counsel should be aware that the Fifth Circuit has joined other circuits in barring appellate review of remand orders issued under Section 1447(e) for lack of subject matter jurisdiction.