Remand Order Colorably Based on Lack of Unanimity Not Reviewable on Appeal: Tenth Circuit | Practical Law

Remand Order Colorably Based on Lack of Unanimity Not Reviewable on Appeal: Tenth Circuit | Practical Law

In Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation, the US Court of Appeals for the Tenth Circuit held that a district court order remanding the case because the defendants did not unanimously join or consent to removal is patently "not reviewable" under 28 U.S.C. § 1447(d).

Remand Order Colorably Based on Lack of Unanimity Not Reviewable on Appeal: Tenth Circuit

by Practical Law Litigation
Published on 17 Aug 2015 • USA (National/Federal)
In Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation, the US Court of Appeals for the Tenth Circuit held that a district court order remanding the case because the defendants did not unanimously join or consent to removal is patently "not reviewable" under 28 U.S.C. § 1447(d).
On August 13, 2015, in Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation, the US Court of Appeals for the Tenth Circuit held that a district court order remanding the case because the defendants did not unanimously join or consent to removal is patently "not reviewable" under 28 U.S.C. § 1447(d) (No. 14-4089, (10th Cir. Aug. 13, 2015)).
Plaintiffs filed a complaint in Utah state court seeking injunctive relief and a declaration as to the authority of the Ute Indian Tribe of the Uintah and Ouray Reservation (the Tribe) over non-Indian businesses operating on certain categories of land. The complaint also alleged that certain individuals affiliated with the Ute Tribal Employment Rights Office had harassed and extorted plaintiffs in violation of state law. The defendants filed a motion to dismiss in state court. The state court later granted plaintiffs' motion to file an amended complaint adding additional defendants.
The Tribe then filed a notice of removal in the US District Court for the District of Utah. In its notice, the Tribe stated that several defendants had consented to removal and that the remainder would consent. The remaining defendants, except for one, filed consent and joinders to removal. Plaintiffs filed a motion to remand on various bases, which the district court granted. The district court found that removal was improper based on both waiver and lack of unanimity.
The Tribe timely filed a notice of appeal from the district court’s remand order, and the Tenth Circuit dismissed the appeal. Under 28 U.S.C. § 1447(d), a district court order remanding a case to state court is "not reviewable on appeal or otherwise." However, in Powerex Corp. v. Reliant Energy Services, Inc., the US Supreme Court concluded that some remand orders are appealable despite the plain language of Section 1447(d) (551 U.S. 224 (2007)). Powerex reaffirmed that Section 1447(d) should be read in pari materia with Section 1447(c), so that only the grounds for remand specified in Section 1447(c) are not reviewable, such as remand orders based on lack of subject matter jurisdiction and for defects in removal procedure. Further, Powerex found that review of a remand order based on lack of subject matter jurisdiction, to the extent that it is reviewable at all, should be limited to confirming that that characterization is colorable. Indeed, the Tenth Circuit has previously explained that in light of Powerex, appellate review of remand orders is highly circumscribed.
The Tenth Circuit avoided wading into a circuit split regarding whether a remand based on waiver through participation in the state court proceeding is reviewable. Instead, it considered only whether a remand based on lack of unanimity is reviewable and concluded that it is not, because:
  • It was persuaded by the Ninth Circuit’s approach in Atlantic National Trust LLC v. Mount Hawley Insurance Co., 621 F.3d 931 (9th Cir. 2010), where the court found that Powerex's holding is applicable to remands that rely on a non-jurisdictional defect, such as lack of unanimity.
  • Limiting appellate review of remand orders supports Congress's policy of not permitting interruption of litigation of the merits of a removed case.
  • Lack of unanimity bears no resemblance to the basis of remand orders declared reviewable by the US Supreme Court, but rather, it is a procedural defect clearly established by statute as precluding removal.
Because the Tenth Circuit concluded that the remand order was colorably characterized as based on lack of unanimity, the court declined to examine whether the district court was correct in determining that unanimity was lacking, and dismissed the appeal.