Third Circuit Holds Motion For Reconsideration Does Not Avoid Prohibition Of Appellate Remand Orders

Not all federal trial court decisions are subject to appellate review. Most decisions to remand a case removed from state court are not reviewable, whether as of right or by extraordinary writ. A recent Third Circuit decision holds that the denial of a motion for reconsideration of a remand order also is not subject to review.

In Agostini v. Piper Aircraft Corp., No. 12-2098, 2013 U.S. App. LEXIS 18457 (3d Cir., Sept. 5, 2013), the Third Circuit explained that a motion for reconsideration of a remand order is not one of a small breed of orders that may be reviewed as collateral to the remand order. Some case history is necessary to understand the holding and its ramifications.

The plaintiffs filed state law claims for wrongful death in the Court of Common Pleas of Philadelphia County. The case was removed to the U.S. District Court for the Eastern District of Pennsylvania on the basis of diversity of citizenship jurisdiction. Arguing that there was not complete diversity of citizenship, the plaintiffs moved for remand, which the trial court granted. One of the defendants then moved for reconsideration on the ground that the court had relied on matters outside the record to conclude that diversity was lacking. The trial court concluded that the standard for reconsideration was not met and denied the motion. The certified copy of the remand order was mailed to the state court after the motion for reconsideration was decided.

Section 1447(d) of Title 28 provides that remand orders are not reviewable, "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." Therefore, on its face, Section 1447(d) permits review of remands of cases removed under the federal officer (§ 1442) and civil rights (§ 1443) case removal statutes, but no others. The Supreme Court has held that the rule of nonreviewability applies even in the face of clear error by the trial court. The purpose of the statute is to prevent prolonged litigation over jurisdictional issues and the concomitant interruption of litigation on the merits.

The courts have interpreted the nonreviewability rule to apply only to remands within the scope of subsection 1447(c), which are lack of subject matter jurisdiction and defects in the removal procedure. Other grounds for removal, such as abstention or comity, are not covered. There also are other statutes (for example, 12 U.S.C....