In its recent decision in Grace Ranch, L.L.C. v. BP America Production Company, et al., No. 20-30224 (5th Cir. Feb. 24, 2021), the United States Court of Appeals for the Fifth Circuit addressed whether remand orders based upon abstention grounds can be reviewed on appeal. In Grace Ranch, the defendants removed to federal court a claim brought under a Louisiana citizen suit statute, based upon diversity jurisdiction. The plaintiff moved to remand on two grounds. First, the plaintiff argued that diversity jurisdiction was lacking because the State of Louisiana was the real party in interest under the citizen suit provision at issue, and there can be no diversity jurisdiction when a state is a party. Alternatively, the plaintiff suggested that the district court abstains from adjudicating the citizen suit claim under the Burford doctrine, which allows federal courts to abstain from deciding a case otherwise properly before it when doing so would result in entanglement with state efforts to implement important policy programs. The district court granted remand, determining that it had diversity jurisdiction, but electing to abstain under Burford. While remand orders based upon lack of subject matter jurisdiction are not subject to appeal, because this remand order was based upon abstention—and not a finding that the district court lacked jurisdiction—Defendants appealed. The Fifth Circuit thus considered whether it had appellate jurisdiction to review a remand ruling based upon abstention. The court noted that while 28 U.S.C. § 1447(d) generally provides that “an order remanding a case to the State court from which it was removed is not reviewable on appeal,” the United States Supreme Court explained in Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976), that only certain types of remand orders—those addressed by subsection 1447(c)—are subject to 1447(d)’s prohibition. The current version of 1447(c) pertains to remands for lack of subject matter jurisdiction and remands for any non-jurisdictional "defect." Because a remand due to abstention is neither (1) based upon a lack to subject matter jurisdiction, nor (2) is due to a "defect," the Fifth Circuit expressly concluded that remands on abstention grounds are subject to appellate review.
About the Author
Kelly Brechtel Becker
Liskow & Lewis
Appellate Law Committee Chair
New Orleans Bar Association's Board of Directors