Collateral review of remand orders: reasserting the supervisory role of the Supreme Court.

• Author: Pfander, James E.

INTRODUCTION I. APPELLATE REVIEW OF REMAND ORDERS II. SUPERVISORY OVERSIGHT OF REMAND ORDERS A. The Freestanding Supervisory Power B. Supervision of District Court Remand Orders C. Predictable Concerns with the Use of Supervisory Power 1. Docket Control 2. Section 1447(d) III. THE FUTURE OF APPELLATE JURISDICTIONAL LAW CONCLUSION INTRODUCTION

A quiet crisis has developed in the Supreme Court's management of the appellate review of remand orders, one that nicely illuminates the challenges of crafting workable appellate jurisdictional law. (1) The trouble begins with the text of the relevant statute. (2) On its face, [section] 1447(d) of the judicial code flatly prohibits review of remand orders, by "appeal or otherwise." (3) It thus appears to give district court judges the final word when they grant a motion to remand to state court. (4) But the Court has not been able to live with a flat prohibition. In a line of cases stretching back to 1976, the Court has held that the restriction on appellate review applies only to remands ordered to address a defect in removal procedure or an absence of subject matter jurisdiction. (5) Having narrowed the statutory restriction, the Court has authorized appellate review of a range of remand orders. Thus, the Court has approved review when the remand in question represents an exercise of discretion (6) and when another federal statute imposes a particularly emphatic restriction on the district court's remand authority. (7)

Apart from having crafted an exception to the statutory restriction on appellate review, the Court has expanded the availability of as-of-right review through the collateral order doctrine. Early decisions allowed review of remand orders by writ of mandamus, a tool of appellate oversight that applies only in extraordinary circumstances and only in the absence of other remedies." Mandamus requires a petition for review addressed to the appellate court and does not afford as-of-right access to appellate dockets. (9) But later cases held that remand decisions qualify for as-of-right review as collateral orders that conclusively resolve important issues separate from the merits of the case. (10) As a consequence of the Court's switch to reliance on the collateral order doctrine, parties may now seek review of remand orders as a matter of right, without making the showing required to secure mandamus. (11) Any new expansion of remand review thus opens the docket of the intermediate appellate courts to a variety of new appeals. Defendants who wish to delay litigation on the merits by contesting remand and other collateral orders have shown a marked propensity to exploit opportunities for as-of-right appellate review. (12)

One can see signs of growing discomfort in the Court's most recent decisions. In Carlsbad Technology, Inc. v. HIF Bio, Inc., the Court unanimously concluded that the bar to appellate review did not apply to a district court's discretionary decision to remand certain supplemental state law claims to state court. (13) Yet despite the Court's unanimity, the remand order in Carlsbad does not appear to be a very compelling candidate for immediate appellate review. It was a garden-variety decision, involving state law claims that were removed to federal court alongside a federal question claim as part of the district court's supplemental jurisdiction. (14) Once the federal question claim dropped out of the case, the district court exercised its discretion to send the supplemental state law claims back to state court. (15) The error rate in making such discretionary calls must be rather low, and the need for interlocutory appellate review correspondingly slight. As a consequence, one might ask whether a sensible jurisdictional regime would authorize immediate review of such orders.

Justice Breyer posed exactly that question. In his concurring opinion, Justice Breyer pointed out the anomaly of the Court's current approach. (16) Carlsbad extended immediate review to routine matters but not to a variety of issues that Justice Breyer and others regarded as much more pressing. Pointing to one of the Court's recent decisions, Justice Breyer argued that issues of foreign sovereign immunity made a stronger demand on federal appellate dockets. (17) Yet under the current regime, the jurisdictional characterization of the remand order foreclosed review of the immunity decision. Apparently believing that the Court itself could not easily address this anomaly, Justice Breyer issued a remarkable call. He suggested that a group of "experts" review the law to determine if "statutory revision is appropriate." (18) In addition to Congress, Justice Breyer may have meant to stimulate the Judicial Conference's rules advisory process and the creative juices of legal scholars. (19)

Whatever its impact on others, Justice Breyer's call certainly stimulated his colleagues. In his own concurring opinion, Justice Scalia acknowledged that the appellate review of remand decisions departs from the text of the relevant statute and defies "common sense." (20) But he rejected the call for expert engagement. According to Justice Scalia, the Court should return to the text of the statute and flatly prohibit all appellate review of remand orders, thus fixing a mess of its own making. (21) To be sure, that solution would require the Court to overrule a long line of cases. But Justice Scalia would presumably argue that litigants have few if any reliance interests in the continued application of an exception that departs from the plain language of the statute and operates with something of a hit-or-miss quality. In addition, Justice Scalia might observe that the continued multiplication of exceptions carries federal jurisdictional policy further and further away from Congress's sensible decision to limit routine review.

Justice Stevens also answered Justice Breyer's call. In a brief restatement of his own views of statutory interpretation, Justice Stevens acknowledged that he would apply the literal meaning of [section] 1447(d) if he were writing on a clean slate. (22) But earlier decisions had departed from the text. (23) Feeling some obligation to honor these existing precedents, Justice Stevens viewed the textual argument as one whose day had passed. (24) He thus announced a position similar to that in other cases where he has viewed the text of jurisdictional statutes as a relevant, but not necessarily dispositive, element in the interpretive enterprise. (25) By picking up this theme in Carlsbad, Justice Stevens apparently meant to highlight the fact that two Justices normally inclined toward textualism (Justices Thomas and Scalia), were cast in the awkward role of applying a judge-made rule that departs from the statute's language. (26)

Freed from the need to speak for a majority, as he had done in Carlsbad, Justice Thomas has also addressed the issue, albeit in a slightly different context. In Mohawk Industries, Inc. v. Carpenter, the Court refused to extend the collateral order doctrine to allow an appeal from a district court disclosure order adverse to a claim of attorney-client privilege. (27) Justice Thomas wrote a separate opinion, concurring in the denial of review and casting doubt on the legitimacy of judge-made exceptions to the final judgment rule. (28) Justice Thomas emphasized that Congress had authorized the federal courts to fashion rules of interlocutory review through the rulemaking process. Viewing rule-makers drawn from "bench and bar" as the institution Congress deemed best suited to fashion legitimate exceptions to the finality requirement, Justice Thomas would eschew all future judge-made expansions in the collateral order doctrine. (29)

In this Article, I suggest a solution to the problem of appellate review of remand orders that draws on the insights of all of these Justices. Justice Breyer correctly argues that the current system fails to deploy appellate resources efficiently. Justice Scalia may well be correct in his view that as-of-right review of remand orders makes little sense in light of the jurisdictional policy expressed in [section] 1447(d). Both the Court and Justice Thomas may be right to doubt the wisdom of further judicial expansions in the collateral order doctrine. But Justice Stevens sensibly recognizes that certain kinds of mistakes at the district court level call out so insistently for appellate oversight that a flat ban on review makes little sense. The puzzle lies in blending these insights into a workable package that fits tolerably well with the existing jurisdictional landscape and preserves the Court's ability to identify egregious errors that require intervention.

The answer proposed here focuses not on new legislation or rulemaking (although these possibilities deserve ongoing consideration), but on two changes that lie well within the Court's own authority. First, the Court should reinvigorate its established powers of supervision. The Court's own precedents recognize that it can directly intervene at the district court level, exercising powers of supervisory oversight conferred in the All Writs Act. (30) To be sure, the Court decided many of the leading cases in the last century. Thus, in Ex parte Republic of Peru, the Court granted an "original" writ of prohibition to bar the district court from hearing an admiralty claim in apparent violation of foreign sovereign immunity. (31) An "original" writ begins with a petition for leave to file in the Supreme Court, but it invokes the Court's appellate jurisdiction under Article III of the Constitution. (32) As recently as January 2010, the Court confirmed that these supervisory powers were no mere relic of the twentieth century but continued to provide an important source of oversight. In Hollingsworth v. Perry, the Court intervened directly to countermand a district court order that called for the Internet broadcast of a trial challenging the constitutionality of...