On appealing remand orders

We removed a case the other day. Sometimes it seems like we remove a case every month. A few times over the years the other side has fought back, seeking a remand to state court. Once, years ago, we appealed a remand order to the Fourth Circuit, and it was reversed, notwithstanding the prohibition against appeals of remand orders expressed in 28 U.S.C. § 1447. That case involved the issue of whether the plaintiff's state law tort claim against a federal employee fell under the Federal Tort Claims Act. In arguing for appellate jurisdiction over the District Court's order, we relied on the Supreme Court's decisions in the Thermtron and Waco cases.

Recently, those cases were lightly addressed by the Supreme Court in Kircher v. Putnam Funds Trust, a securities law case, decided June 15. Justice Souter, in his opinion for the Court, dismissed the Waco arguments in a footnote. The idea behind Waco was that when the trial court ruled on another issue necessarily in conjunction with the remand, but the remand would have the effect of preventing review of the ruling on the other issue, the appeals court could take an appeal. I thought that was more or less what happened in the Kircher case, but I guess it wasn't.