Remands by deception.

Author:Janssen, William M.
Position:II. Remands by Deception B. Barlow v. Colgate: The Fourth Circuit's Ruling through Conclusion, with footnotes, p. 100-126
  1. Barlow v. Colgate: The Fourth Circuit's Ruling

    Initially, a divided three-judge panel voted to affirm the district court's decision rejecting the remand challenge. (157) Noting the extraordinary nature of the vacatur request by Colgate, facially contrary to the no-review prohibition on remand orders that has long prevailed in federal law, the panel majority observed:

    [N]o court has ever embraced the argument Colgate puts forward today, and for a simple reason: it is a long-standing principle that entry of an order remanding a case to state court divests the district court "of all jurisdiction in [the] case and preclude[s] it from entertaining any further proceedings of any character, including the defendants' motion to vacate the original remand order." (158) Rejecting Colgate's argument in the appeal, the panel majority held that Colgate's pursuit of vacatur as a sanction "is, to put it simply, an anomaly in federal jurisdiction." (159)

    In a subsequent en banc rehearing, the Fourth Circuit shifted course, vacating the panel affirmance and substituting it with a ruling that now reversed and remanded the district court. (160) The en banc ruling was also divided: six to reverse, one concurring in part and dissenting in part, and one to affirm. (161) The en banc majority opinion was written by Judge Henry F. Floyd, who had dissented from the earlier panel affirmance; the en banc dissent was written by Senior Judge Andre M. Davis, who had prepared the now-vacated panel affirmance. (162)

    The new en banc opinion held that the longstanding federal no-review prohibition on remand orders would not foreclose a vacatur of the remand order on the Barlow facts. (163) The court explained that "vacating" a fraudulently obtained remand order would not implicate the statutorily forbidden "review" of the underlying merits of the decision to remand. (164) This distinction, explained the court, "is not merely semantic." (165) Only a merits "review" of remand orders is proscribed by Congress, not vacatur on the collateral ground of attorney misconduct. (166) Because the district court enjoyed the jurisdictional authority to consider vacatur as a remedy for any misconduct found to have been committed by Plaintiffs, its jurisdictionally-based ruling had to be overturned. (167) Furthermore, because the district court had labored under an errant jurisdictional conclusion, its cursory, closing surmise that would have rejected a sanctioned-based vacatur was dismissed by the Fourth Circuit as "mere dicta" entitled to "no weight." (168) Consequently, the en banc Fourth Circuit returned the matter to the district judge with instructions "to make specific findings--supported by cogent reasoning--on whether Plaintiffs engaged in misconduct while in federal court," and whether Rule 11 sanctions or a Rule 60(b)(3) vacatur was warranted. (169)

    A scalding dissent from Judge Davis rebuked the en banc majority for "a new low" in reviewing the labor of trial judges. (170) The en banc result, criticized the dissent, was "a blatant evasion" of the no-review directive--a holding that sister circuits were "unlikely" to follow and one the Supreme Court was almost certain to reject: "[T]his case is a first-round draft choice for summary reversal should plaintiffs choose not to go back to the district court to achieve the preordained results of the do-over unwisely ordered by the majority and instead file a petition for certiorari." (171)

    Notwithstanding the sharp critique, the en banc decision stands now as the controlling law within the Fourth Circuit. For the first time in any published opinion, a federal court (and, indeed, an entire federal circuit sitting en banc) has held that Congress's longstanding prohibition on reviews of remand orders does not foreclose a vacatur when the deciding judge is hoodwinked.

  2. Barlow v. Colgate: The Majority's Rationale

    There is little doubt that the en banc Fourth Circuit majority understood the import of Congress's no-review directive ("This statute generally precludes review of a remand order if the remand is for lack of subject-matter jurisdiction or for defects in the removal procedure"). (172) Nor is there much doubt that the majority appreciated the prohibition's underlying motivation ("This strict treatment serves the purposes of comity and judicial economy, as an action 'must not ricochet back and forth depending upon the most recent determination of a federal court.'"). (173)

    But the Fourth Circuit also reasoned that when Congress crafted its noreview statute, it selected the statute's wording artfully. "[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." (174) The statutory language Congress wrote directed that federal remand orders are "not reviewable on appeal or otherwise." (175) That syntax, explained the court, was honed enough to permit a differentiation between "vacatur based on a contaminated process" and "review of a motion's merits." (176) Colgate was foreclosed statutorily from seeking the latter (a review of the remand order's merits), but free to pursue the former (a vacatur based on a corrupted decisional process):

    Colgate requests vacatur, not reconsideration. And unlike reconsideration, vacatur does not require reassessing the facts that were presented to the district court at the time the cases were removed. Again, Colgate only argues that Plaintiffs' counsel misrepresented the actual facts of the case. Colgate therefore attacks the manner by which Plaintiffs secured the remand orders, not the merits or correctness of the orders themselves. (177) In search of corroboration for its reasoning, the Fourth Circuit surveyed decisions from its sister circuits, two of whom had drawn similar distinctions --albeit in different remand contexts--between a "review" and a "vacatur". (178) Both those opinions, reasoned the en banc panel, validated the court's own distinction in Barlow between a reversal premised "on the remand's merits" an outcome squarely foreclosed by Congress's "no-review" prohibition--and "vacatur based on a collateral consideration" (namely, "Colgate's allegation that the remand orders were procured through attorney misconduct"). (179) The Barlow majority acknowledged that three other circuits had ruled in brief, non-binding, unpublished opinions that the no-review prohibition would forbid the sort of vacatur the Fourth Circuit was now approving. (180) But the Fourth Circuit found those rulings insubstantial and unpersuasive. (181)

    In the final analysis, the en banc majority was convinced: "[Njothing in the plain language" of Congress's no-review statute "bars vacatur of the district court's remand orders if the court determines that such relief is warranted. Although reconsideration is a subspecies of review, ... vacatur, without revisiting a prior order's merits, is no such cousin or relative." (182) Because the district court had misapprehended that it lacked jurisdiction to consider whether a vacatur grounded in litigant-initiated mischief was warranted, that decision was error and had to be overturned. (183)


    The Barlow ruling is the latest chapter in the fascinating tale of the no-review directive. There is a fair measure of poetic symmetry in this first-ever judicial encounter with the question of deceptively-induced remands. Un-addressed for nearly 130 years, the Barlow drama befits the long wait: an intriguing factual record, a dismissive early affirmance, a divided en banc reversal, a heated dissent, and an ultimate rationale that chooses to navigate around, rather than except, the statutory prohibition.

    The no-review directive's text appears unyielding. That much is undebatable. Yet Congress's set of statutory exemptions and the Supreme Court's group of decisional exclusions testify to a much more equivocal judgment. Congress's legislative objective appears clear, yet its underlying policy goals seem, on inspection, less so. Surely, Congress could not really have intended to insulate fraudulently-induced remands from adjustment, could they? Yet, even if that wasn't their intent, might that be the actual implementing effect of the statute Congress wrote? Could it truly be the case that hoodwinked remands are the "perfect crime" in federal jurisdiction, with Section 1447(d) as the very best getaway ride ever?

  3. The Starting Line: Statutory Plain Meaning

    Section 1447(d) is a federal statute, and as such, the method for construing it is well prescribed. It is incumbent upon the courts to "give effect to the unambiguously expressed intent of Congress." (184) The first step (and potentially last step) in statutory construction, then, is "the language of the statute itself." (185) If that statutory language "is plain, the sole function of the courts at least where the disposition required by the text is not absurd--is to enforce it according to its terms." (186) The labor of statutory construction thus "ceases" when a statute's language is found to be "unambiguous and the statutory scheme is coherent and consistent." (187) In such a case, the courts "presume that Congress 'means in a statute what it says there.'" (188)

    So, plain meaning is the start. Does the no-review statute "plainly" address the question of the proper fate for hoodwinked remands? The statute reads, in full:

    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 1442 or 1443 of this title shall be reviewable by appeal or otherwise. (189) Obviously, the statute does not speak specially to deceptively induced remands. (190) The plain meaning inquiry, then, devolves to this question: Can it be fairly said that deceptively-induced remands are--as a class of remands plainly encompassed within the broad, general scope of non-"reviewable" orders...

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