(Slip Opinion) OCTOBER TERM, 2006 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
POWEREX CORP. v. RELIANT ENERGY SERVICES,
INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 05–85. Argued April 16, 2007—Decided June 18, 2007
Plaintiffs-respondents filed state-court suits alleging that various com
panies in California’s energy market had conspired to fix prices in
violation of state law. Some of the defendants filed cross-claims seek
ing indemnity from, inter alios, two United States Government agen
cies (BPA and WAPA); a Canadian corporation (BC Hydro) wholly
owned by British Columbia and thus a “foreign state” under the For
eign Sovereign Immunities Act of 1976 (FSIA); and petitioner Pow
erex, a wholly owned subsidiary of BC Hydro. The cross-defendants
removed the entire case to federal court, with BC Hydro and peti
tioner relying on the FSIA. Plaintiffs-respondents moved to remand,
arguing that petitioner was not a foreign state and that the cross-
claims against BPA, WAPA, and BC Hydro were barred by sovereign
immunity. The District Court agreed and remanded. As relevant
here, petitioner appealed, arguing that it was a foreign sovereign un
der the FSIA, but plaintiffs-respondents rejoined that the appeal was
jurisdictionally barred by 28 U. S. C. §1447(d), which provides that
“[a]n order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise.” The Ninth Cir
cuit held that §1447(d) did not preclude it from reviewing substantive
issues of law that preceded the remand order, but affirmed the hold
ing as to petitioner’s foreign-state status.
Held: Section 1447(d) bars appellate consideration of petitioner’s claim
that it is a foreign state for FSIA purposes. Pp. 3–14.
(a) Appellate courts’ authority to review district-court orders re
manding removed cases to state court is substantially limited by
statute. Section 1447(d) is read in pari materia with §1447(c), so that
only remands based on the grounds specified in the latter are
2 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Syllabus
shielded by the review bar mandated by the former. Thermtron
Products, Inc. v. Hermansdorfer, 423 U. S. 336, 345–346. For pur
poses of this case, it is assumed that the grounds specified in §1447(c)
are lack of subject-matter jurisdiction and defects in removal proce
dure. Cf. Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 711–712.
Given the proceedings below, review of the remand order is barred
only if it was based on lack of subject-matter jurisdiction. Pp. 3–5.
(b) Nothing in §1447(c)’s text supports the claim that a case cannot
be remanded for lack of subject-matter jurisdiction within the mean
ing of that provision if the case was properly removed in the first in
stance. Indeed, statutory history conclusively refutes the argument
that §1447(c) is implicitly limited in such a manner. When a district
court remands a properly removed case because it nonetheless lacks
subject-matter jurisdiction, the remand is covered by §1447(c) and
shielded from review by §1447(d). Pp. 5–7.
(c) The District Court relied upon a ground that is colorably charac
terized as subject-matter jurisdiction and so §1447(d) bars appellate
review. As an initial matter, it is clear from the record that the court
was purporting to remand for lack of subject-matter jurisdiction.
Even assuming that §1447(d) permits appellate courts to look behind
a district court’s characterization of the basis for the remand, such
review is hereby limited to ascertaining whether the characterization
was colorable. In this case, the only plausible explanation of the Dis
trict Court’s remand was that it believed that it lacked the power to
adjudicate the claims against petitioner once it had determined that
petitioner was not a foreign state and that the other cross-defendants
had sovereign immunity. It is unnecessary to determine whether
that belief was correct; it was at least debatable. Petitioner contends
instead that the District Court was actually remanding based on
Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343, 357, which authorizes
remand when a district court declines to exercise supplemental juris
diction. This is implausible. The District Court never mentioned the
possibility of supplemental jurisdiction, and petitioner does not ap
pear to have argued that the claims against it could be retained
based on supplemental jurisdiction. Pp. 7–10.
(d) The Ninth Circuit held that §1447(d) does not preclude review
ing a district court’s substantive determinations that precede a re
mand order, a holding that appears to be premised on Waco v. United
States Fidelity & Guaranty Co., 293 U. S. 140. Waco, however, does
not permit an appeal when, as here, there is no order separate from
the unreviewable remand order. Pp. 10–11.
(e) Petitioner’s contention that Congress did not intend §1447(d) to
govern suits removed under the FSIA is flatly refuted by this Court’s
longstanding precedent that “[a]bsent a clear statutory command to
Cite as: 551 U. S. ____ (2007) 3
Syllabus
the contrary, [the Court] assume[s] that Congress is ‘aware of the
universality of th[e] practice’ of denying appellate review of remand
orders when Congress creates a new ground for removal.” Things
Remembered, Inc. v. Petrarca, 516 U. S. 124, 128. Pp. 12–13.
391 F. 3d 1011, vacated in part and remanded.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO, JJ., joined.
KENNEDY, J., filed a concurring opinion, in which ALITO, J., joined.
BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.
Cite as: 551 U. S. ____ (2007) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–85
_________________
POWEREX CORP., PETITIONER v. RELIANT ENERGY
SERVICES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 18, 2007]
JUSTICE SCALIA delivered the opinion of the Court.
We granted certiorari to decide whether, under the
Foreign Sovereign Immunities Act of 1976 (FSIA), peti
tioner is an “organ of a foreign state or political subdivi
sion thereof.” 28 U. S. C. §1603(b)(2). When we granted
certiorari, however, we asked the parties also to address
whether the Ninth Circuit had appellate jurisdiction in
light of 28 U. S. C. §1447(d).
I
The procedural history of this case is long and compli
cated; we recount only what is necessary to resolve the
writ before us. The State of California, along with some
private and corporate citizens (hereinafter collectively
referred to as plaintiffs-respondents), filed suits in Cali
fornia state courts against various companies in the Cali
fornia energy market, alleging that they had conspired to
fix prices in violation of California law. Some of those
defendants, in turn, filed cross-claims seeking indemnity
from, inter alios, the Bonneville Power Administration
(BPA), the Western Area Power Administration (WAPA),
the British Columbia Hydro and Power Authority (BC
2 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Opinion of the Court
Hydro), and petitioner Powerex (we shall sometimes refer
to these entities collectively as the cross-defendants). BPA
and WAPA are agencies of the United States Government.
BC Hydro is a crown corporation of the Canadian Province
of British Columbia that is wholly owned by the Province
and that all parties agree constitutes a “foreign state” for
purposes of the FSIA. See §1603. Petitioner, also a Cana
dian corporation, is a wholly owned subsidiary of BC
Hydro.
The cross-defendants removed the entire case to federal
court. BC Hydro and petitioner both relied on §1441(d),
which permits a “foreign state,” as defined by §1603(a) of
the FSIA, to remove civil actions brought against it in
state court. BPA and WAPA invoked §1442(a), authoriz
ing removal by federal agencies. Plaintiffs-respondents
moved to remand, arguing that petitioner was not a for
eign state, and that the cross-claims against BPA, WAPA,
and BC Hydro were barred by sovereign immunity. Peti
tioner opposed remand on the ground that it was a foreign
state under the FSIA; the other cross-defendants opposed
remand on the ground that their sovereign immunity
entitled them to be dismissed from the action outright.
The District Court initially concluded (we assume cor
rectly) that §1442(a) entitled BPA and WAPA to remove
the entire case and that BC Hydro was similarly entitled
under §1441(d). App. to Pet. for Cert. 20a. It thus be
lieved that whether the case should be remanded “hinge[d
on its] jurisdictional authority to hear the removed claims,
not whether the actions were properly removed in the first
instance.” Ibid. The District Court held that petitioner
did not qualify as a foreign sovereign under the FSIA. Id.,
at 33a–38a. It also decided that BC Hydro enjoyed sover
eign immunity under the FSIA. Id., at 21a–33a. And it
concluded that BPA and WAPA were immune from suit in
state court, which the court believed deprived it of juris
diction over the claims against those agencies. Id., at 38a–
Cite as: 551 U. S. ____ (2007) 3
Opinion of the Court
44a. Having reached these conclusions, the District Court
remanded the entire case. Id., at 44a.
Petitioner appealed to the Court of Appeals for the
Ninth Circuit, arguing that it was a foreign sovereign
under the FSIA. BPA and WAPA (but not BC Hydro) also
appealed, asserting that the District Court, before re
manding the case, should have dismissed them from the
action in light of their sovereign immunity. Plaintiffs-
respondents, for their part, rejoined that both appeals
were jurisdictionally barred by §1447(d) and that the
District Court had not erred in any event. The Ninth
Circuit rejected the invocation of §1447(d), holding that
that provision did not preclude it from reviewing substan
tive issues of law that preceded the remand order. Cali
fornia v. NRG Energy Inc., 391 F. 3d 1011, 1022–1023
(2004). It also found that the District Court had jurisdic
tion over the case because BPA, WAPA, and BC Hydro
properly removed the entire action. Id., at 1023. Turning
to the merits, the Ninth Circuit affirmed the holding that
petitioner was not a “foreign state” for purposes of the
FSIA. Id., at 1025–1026. It also upheld the District
Court’s conclusion that BPA, WAPA, and BC Hydro re
tained sovereign immunity, id., at 1023–1025, but re
versed its decision not to dismiss BPA and WAPA before
remanding, id., at 1026–1027.
Petitioner sought certiorari review of the Ninth Circuit’s
determination that it was not an “organ of a foreign state
or political subdivision thereof” under §1603(b)(2). We
granted certiorari on this question, but asked the parties
to address in addition whether the Ninth Circuit had
jurisdiction over petitioner’s appeal notwithstanding
§1447(d). 549 U. S. ____ (2007).
II
The authority of appellate courts to review district-court
orders remanding removed cases to state court is substan
4 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Opinion of the Court
tially limited by statute. Title 28 U. S. C. §1447(d) pro
vides (with an exception for certain civil rights cases) that
“[a]n order remanding a case to the State court from which
it was removed is not reviewable on appeal or otherwise.”
Determining whether the Ninth Circuit was permitted to
review the District Court’s remand is, alas, not as easy as
one would expect from a mere reading of this text, for we
have interpreted §1447(d) to cover less than its words
alone suggest. In Thermtron Products, Inc. v. Hermans
dorfer, 423 U. S. 336, 345–346 (1976), we held that
§1447(d) should be read in pari materia with §1447(c), so
that only remands based on the grounds specified in the
latter are shielded by the bar on review mandated by the
former. At the time of Thermtron, §1447(c) stated in
relevant part:
“ ‘If at any time before final judgment it appears that
the case was removed improvidently and without ju
risdiction, the district court shall remand the case.’ ”
Id., at 342.
Consequently, Thermtron limited §1447(d)’s application to
such remands. Id., at 346. In 1988, Congress amended
§1447(c) in relevant part as follows:
“A motion to remand the case on the basis of any de
fect in removal procedure must be made within 30
days after the filing of the notice of removal under [28
U. S. C. §]1446(a). If at any time before final judg
ment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”
§1016(c)(1), 102 Stat. 4670.
When that version of §1447(c) was in effect, we thus inter
preted §1447(d) to preclude review only of remands for
lack of subject-matter jurisdiction and for defects in re
moval procedure. See Quackenbush v. Allstate Ins. Co.,
517 U. S. 706, 711–712 (1996); Things Remembered, Inc. v.
Cite as: 551 U. S. ____ (2007) 5
Opinion of the Court
Petrarca, 516 U. S. 124, 127–128 (1995).
Although §1447(c) was amended yet again in 1996, 110
Stat. 3022, we will assume for purposes of this case that
the amendment was immaterial to Thermtron’s gloss on
§1447(d), so that the prohibition on appellate review re
mains limited to remands based on the grounds specified
in Quackenbush. We agree with petitioner that the re
mand order was not based on a defect in removal proce
dure, so on the foregoing interpretation of Thermtron the
remand is immunized from review only if it was based on
a lack of subject-matter jurisdiction.
A
The principal submission of the Solicitor General and
petitioner is that the District Court’s remand order was
not based on a lack of “subject matter jurisdiction” within
the meaning of §1447(c) because that term is properly
interpreted to cover only “a defect in subject matter juris
diction at the time of removal that rendered the removal
itself jurisdictionally improper.” Brief for United States as
Amicus Curiae 8; see also id., at 8–11; Brief for Petitioner
42–45. Under this interpretation, the District Court’s
remand order was not based on a defect in subject-matter
jurisdiction for purposes of §1447(c), since the cross-
defendants other than petitioner were statutorily author
ized to remove the whole case in light of their sovereign
status. The Ninth Circuit appears to have relied, at least
in part, on this rationale. See 391 F. 3d, at 1023.
We reject this narrowing construction of §1447(c)’s
unqualified authorization of remands for lack of “subject
matter jurisdiction.” Nothing in the text of §1447(c) sup
ports the proposition that a remand for lack of subject-
matter jurisdiction is not covered so long as the case was
properly removed in the first instance. Petitioner and the
Solicitor General do not seriously dispute the absence of
an explicit textual limitation. Instead, relying on the
6 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Opinion of the Court
statutory history of §1447(c), they make a three-step
argument why the provision is implicitly limited in this
manner. First, they note that the pre-1988 version of
§1447(c) mandated remand “[i]f at any time before final
judgment it appear[ed] that the case was removed im
providently and without jurisdiction,” 28 U. S. C. §1447(c)
(1982 ed.). That version, obviously, authorized remand
only for cases that were removed improperly. Second, they
contend that the purpose of the 1988 amendment was to
impose a time limit for raising nonjurisdictional objections
to removal, a contention that is certainly plausible in light
of the structure of the amended provision:
“A motion to remand the case on the basis of any de
fect in removal procedure must be made within 30
days after the filing of the notice of removal under
section 1446(a). If at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” §1447(c)
(1988 ed.).
Finally, they conclude that since the purpose of the
amendment was to alter the timing rules, there is no
reason to think that Congress broadened the scope of
§1447(c) to authorize the remand of cases that had been
properly removed. The language “lacks subject matter
jurisdiction,” which was newly added to §1447(c), must be
construed to cover only cases in which removal was juris
dictionally improper at the outset.
But the very statutory history upon which this creative
argument relies conclusively refutes it. The same section
of the public law that amended §1447(c) to include the
phrase “subject matter jurisdiction” also created a new
§1447(e). See §1016(c), 102 Stat. 4670. Section 1447(e),
which remains on the books, states:
“If after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject mat
Cite as: 551 U. S. ____ (2007) 7
Opinion of the Court
ter jurisdiction, the court may deny joinder, or permit
joinder and remand the action to the State court.”
This unambiguously demonstrates that a case can be
properly removed and yet suffer from a failing in subject-
matter jurisdiction that requires remand. A standard
principle of statutory construction provides that identical
words and phrases within the same statute should nor
mally be given the same meaning. See, e.g., IBP, Inc. v.
Alvarez, 546 U. S. 21, 34 (2005). That maxim is doubly
appropriate here, since the phrase “subject matter juris
diction” was inserted into §1447(c) and §1447(e) at the
same time. There is no reason to believe that the new
language in the former provision, unlike the new language
simultaneously inserted two subsections later, covers only
cases in which removal itself was jurisdictionally im
proper. We hold that when a district court remands a
properly removed case because it nonetheless lacks sub
ject-matter jurisdiction, the remand is covered by §1447(c)
and thus shielded from review by §1447(d).1
B
That holding requires us to determine whether the
ground for the District Court’s remand in the present case
was lack of subject-matter jurisdiction. As an initial
matter, it is quite clear that the District Court was pur
porting to remand on that ground. The heading of the
discussion section of the remand order is entitled “Subject
——————
1 To be clear, we do not suggest that the question whether removal is
proper is always different from the question whether the district court
has subject-matter jurisdiction, for the two are often identical in light of
the general rule that postremoval events do not deprive federal courts
of subject-matter jurisdiction. See, e.g., Wisconsin Dept. of Corrections
v. Schacht, 524 U. S. 381, 391 (1998). We merely hold that when there
is a divergence, such that a district court lacks subject-matter jurisdic
tion to hear a claim that was properly removed, the consequent remand
is authorized by §1447(c) and appellate review is barred by §1447(d).
8 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Opinion of the Court
Matter Jurisdiction Over the Removed Actions.” App. to
Pet. for Cert. 20a. And the District Court explicitly stated
that the remand “issue hinges . . . on the Court’s jurisdic
tional authority to hear the removed claims.” Ibid. Were
any doubt remaining, it is surely eliminated by the Dis
trict Court’s order denying a stay of the remand, which
repeatedly stated that a lack of subject-matter jurisdiction
required remand pursuant to §1447(c). See App. 281–286.
For some Members of this Court, the foregoing conclu
sion that the District Court purported to remand for lack
of subject-matter jurisdiction is alone enough to bar re
view under §1447(d). See Osborn v. Haley, 549 U. S. ___,
___ (2007) (slip op., at 2–3) (SCALIA, J., joined by THOMAS,
J., dissenting). Even assuming, however, that §1447(d)
permits appellate courts to look behind the district court’s
characterization, see Kircher v. Putnam Funds Trust, 547
U. S. ___, ___, n. 9 (2006) (slip op., at 7, n. 9) (reserving the
question), we conclude that appellate review is barred in
this case.2 There is only one plausible explanation of what
legal ground the District Court actually relied upon for its
remand in the present case. As contended by plaintiffs-
respondents, it was the court’s lack of power to adjudicate
the claims against petitioner once it concluded both that
petitioner was not a foreign state capable of independently
removing and that the claims against the other removing
cross-defendants were barred by sovereign immunity.
Brief for Plaintiffs-Respondents 17–21, 25–26. Though we
have not passed on the question whether, when sovereign
immunity bars the claims against the only parties capable
——————
2 The Court’s opinion in Osborn v. Haley, 549 U. S. ___ (2007), had
nothing to say about the scope of review that is permissible under
§1447(d), since it held that §1447(d) was displaced in its entirety by 28
U. S. C. §2679(d)(2). See 549 U. S., at ___ (slip op., at 15–16) (reasoning
that, of the two forum-determining provisions—§1447(d), the generally
applicable section, and §2679(d)(2), a special prescription governing
Westfall Act cases—“only one can prevail”).
Cite as: 551 U. S. ____ (2007) 9
Opinion of the Court
of removing the case, subject-matter jurisdiction exists to
entertain the remaining claims, cf. n. 3, infra, the point is
certainly debatable. And we conclude that review of the
District Court’s characterization of its remand as resting
upon lack of subject-matter jurisdiction, to the extent it is
permissible at all, should be limited to confirming that
that characterization was colorable. Lengthy appellate
disputes about whether an arguable jurisdictional ground
invoked by the district court was properly such would
frustrate the purpose of §1447(d) quite as much as deter
mining whether the factfinding underlying that invocation
was correct. See Kircher, supra, at ___ (slip op., at 2–3)
(SCALIA, J., concurring in part and concurring in judg
ment). Moreover, the line between misclassifying a
ground as subject-matter jurisdiction and misapplying a
proper ground of subject-matter jurisdiction is sometimes
elusively thin. To decide the present case, we need not
pass on whether §1447(d) permits appellate review of a
district-court remand order that dresses in jurisdictional
clothing a patently nonjurisdictional ground (such as the
docket congestion invoked by the District Court in Therm
tron, 423 U. S., at 344). We hold that when, as here, the
District Court relied upon a ground that is colorably char
acterized as subject-matter jurisdiction, appellate review
is barred by §1447(d).
Petitioner puts forward another explanation for the
remand, which we find implausible. Petitioner claims
that, because the entire case was properly removed, the
District Court had the discretion to invoke a form of sup
plemental jurisdiction to hear the claims against it, and
that its remand rested upon the decision not to exercise
that discretion. In short, petitioner contends that the
District Court was actually relying on Carnegie-Mellon
Univ. v. Cohill, 484 U. S. 343, 357 (1988), which author
ized district courts to remand removed state claims when
they decide not to exercise supplemental jurisdiction.
10 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Opinion of the Court
Brief for Petitioner 45–48; Reply Brief for Petitioner 16–
20. It is far from clear, to begin with, (1) that supplemen
tal jurisdiction was even available in the circumstances of
this case;3 and (2) that when discretionary supplemental
jurisdiction is declined the remand is not based on lack of
subject-matter jurisdiction for purposes of §1447(c) and
§1447(d).4 Assuming those points, however, there is no
reason to believe that the District Court’s remand was
actually based on this unexplained discretionary decision.
The District Court itself never mentioned the possibility of
supplemental jurisdiction, neither in its original decision,
see App. to Pet. for Cert. 20–44, nor in its order denying
petitioner’s motion to stay the remand pending appeal,
App. 281–286. To the contrary, as described above, it
relied upon lack of subject-matter jurisdiction—which, in
petitioner’s view of things (but see n. 4, this page) would
not include a Cohill remand. Moreover, it does not appear
from the record that petitioner ever even argued to the
District Court that supplemental jurisdiction was a basis
for retaining the claims against it. There is, in short, no
reason to believe that an unmentioned nonexercise of
Cohill discretion was the basis for the remand.
C
Part of the reason why the Ninth Circuit concluded it
had appellate jurisdiction is a legal theory quite different
——————
3 Petitioner provides no authority from this Court supporting the
proposition that a district court presiding over a multiparty removed
case can invoke supplemental jurisdiction to hear claims against a
party that cannot independently remove when the claims against the
only parties authorized to remove are barred by sovereign immunity.
4 We have never passed on whether Cohill remands are subject-
matter jurisdictional for purposes of post-1988 versions of §1447(c) and
§1447(d). See Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 129–
130 (1995) (KENNEDY, J., concurring) (noting that the question is open);
cf. Cohill, 484 U. S., at 355, n. 11 (discussing the pre-1988 version of
§1447(c)).
Cite as: 551 U. S. ____ (2007) 11
Opinion of the Court
from those discussed and rejected above. Petitioner, along
with the other appellants, convinced the court to apply
Circuit precedent holding that §1447(d) does not preclude
review of a district court’s merits determinations that
precede the remand. See 391 F. 3d, at 1023 (citing, inter
alia, Pelleport Investors, Inc. v. Budco Quality Theatres,
Inc., 741 F. 2d 273, 276–277 (CA9 1984)). Petitioner has
not completely abandoned this argument before us, see
Brief for Petitioner 50, and it is in any event desirable to
address this aspect of the Ninth Circuit’s judgment.
The line of Ninth Circuit jurisprudence upon which
petitioner relied appears to be invoking our decision in
Waco v. United States Fidelity & Guaranty Co., 293 U. S.
140 (1934). There the District Court, in a single decree,
had entered one order dismissing a cross-complaint
against one party, and another order remanding because
there was no diversity of citizenship in light of the dis
missal. Id., at 142. We held that appellate jurisdiction
existed to review the order of dismissal, although we
repeatedly cautioned that the remand order itself could
not be set aside. Id., at 143–144. The Ninth Circuit’s
application of Waco to petitioner’s appeal was mistaken.
As we reiterated in Kircher, see 547 U. S., at ___, n. 13
(slip op., at 11, n. 13), Waco does not permit an appeal
when there is no order separate from the unreviewable
remand order. Here petitioner can point to no District
Court order, separate from the remand, to which it objects
and to which the issue of its foreign sovereign status is
material. Thus, petitioner’s invocation of Waco amounts
to a request for one of two impermissible outcomes: an
advisory opinion as to its FSIA status that will not affect
any order of the District Court, or a reversal of the remand
order. Waco did not, and could not, authorize either form
of judicial relief.
12 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Opinion of the Court
D
Finally, petitioner contends, with no textual support,
that §1447(d) is simply inapplicable to a suit removed
under the FSIA. It asserts that Ҥ1447(d) must yield
because Congress could not have intended to grant district
judges irrevocable authority to decide questions with such
sensitive foreign-relations implications.” Brief for Peti
tioner 49. We will not ignore a clear jurisdictional statute
in reliance upon supposition of what Congress really
wanted. See Connecticut Nat. Bank v. Germain, 503 U. S.
249, 253–254 (1992). Petitioner’s divination of congres
sional intent is flatly refuted by longstanding precedent:
“Section 1447(d) applies ‘not only to remand orders
made in suits removed under [the general removal
statute], but to orders of remand made in cases re
moved under any other statutes, as well.’ . . . Absent
a clear statutory command to the contrary, we assume
that Congress is ‘aware of the universality of th[e]
practice’ of denying appellate review of remand orders
when Congress creates a new ground for removal.”
Things Remembered, 516 U. S., at 128 (quoting United
States v. Rice, 327 U. S. 742, 752 (1946); emphasis de
leted and alterations in original).
Congress has repeatedly demonstrated its readiness to
exempt particular classes of remand orders from §1447(d)
when it wishes—both within the text of §1447(d) itself
(which exempts civil rights cases removed pursuant to 28
U. S. C. §1443), and in separate statutes, see, e.g., 12
U. S. C. §1441a(l)(3)(c), §1819(b)(2)(C); 25 U. S. C. §487(d).
We are well aware that §1447(d)’s immunization of
erroneous remands has undesirable consequences in the
FSIA context. A foreign sovereign defendant whose case is
wrongly remanded is denied not only the federal forum to
which it is entitled (as befalls all remanded parties with
meritorious appeals barred by §1447(d)), but also certain
Cite as: 551 U. S. ____ (2007) 13
Opinion of the Court
procedural rights that the FSIA specifically provides
foreign sovereigns only in federal court (such as the right
to a bench trial, see 28 U. S. C. §1330(a); §1441(d)). But
whether that special concern outweighs §1447(d)’s general
interest in avoiding prolonged litigation on threshold non-
merits questions, see Kircher, supra, at ___ (slip op., at 5),
is a policy debate that belongs in the halls of Congress, not
in the hearing room of this Court. As far as the Third
Branch is concerned, what the text of §1447(d) indisputa
bly does prevails over what it ought to have done.5
——————
5 The dissent’s belief that there is an implicit FSIA exception to
§1447(d), see post, at 1–6 (opinion of BREYER, J.), rests almost exclu
sively on our recent decision in Osborn. The dissent reads Osborn to
stand for the proposition that any “conflict” between a specific, later-
enacted statute and §1447(d) should be resolved in favor of the former.
Post, at 2–3. The reason why the dissent is forced to the parenthetical
admission that “Osborn did not say as much,” post, at 2, is because the
dissent drastically overreads the case. Osborn held only that §1447(d)
was trumped by the Westfall Act’s explicit provision that removal was
conclusive upon the Attorney General’s certification: as between “the
two antishuttling commands,” the Court said, “only one can prevail.”
549 U. S., at ___ (slip op., at 16). The opinion was quite clear that the
only statutory rivalry with which it was concerned was dueling “an
tishuttling commands”: “Only in the extraordinary case in which
Congress has ordered the intercourt shuttle to travel just one way—
from state to federal court—does today’s decision hold sway.” Ibid.
That is why Osborn repeatedly emphasized that Westfall Act certifica
tion is “ ‘conclusiv[e] . . . for purposes of removal,’ ” id., at ___ (slip op., at
13, 14), an emphasis that the dissent essentially ignores, post, at 2–3.
Osborn is no license for courts to assume the legislative role by char
acterizing the consequences of §1447(d)’s bar on appellate review as
creating a conflict, leaving it to judges to suppress that provision when
they think Congress undervalued or overlooked those consequences.
The dissent renders a quintessential policy judgment in concluding that
appellate “delay is necessary, indeed, crucial,” post, at 4, when the
rights of a foreign sovereign are at stake. We have no idea whether this
is a wise balancing of the various values at issue here. We are confi
dent, however, that the dissent is wrong to think that it would improve
the “law in this democracy,” post, at 6, for judges to accept the lawmak
ing power that the dissent dangles before them.
14 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Opinion of the Court
* * *
Section 1447(d) reflects Congress’s longstanding “policy
of not permitting interruption of the litigation of the mer
its of a removed case by prolonged litigation of questions of
jurisdiction of the district court to which the cause is
removed.” Rice, supra, at 751. Appellate courts must take
that jurisdictional prescription seriously, however press
ing the merits of the appeal might seem. We hold that
§1447(d) bars appellate consideration of petitioner’s claim
that it is a foreign state for purposes of the FSIA. We
therefore vacate in part the judgment of the Ninth Circuit
and remand the case with instructions to dismiss peti
tioner’s appeal for want of jurisdiction.
It is so ordered.
Cite as: 551 U. S. ____ (2007) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–85
_________________
POWEREX CORP., PETITIONER v. RELIANT ENERGY
SERVICES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 18, 2007]
JUSTICE KENNEDY, with whom JUSTICE ALITO joins,
concurring.
When Congress acted through the Foreign Sovereign
Immunities Act of 1976, 28 U. S. C. §1602 et seq. (2000 ed.
and Supp. IV), to codify certain protections and immuni
ties for foreign sovereigns and the entities of those sover
eigns, it no doubt considered its action to be of importance
for maintaining a proper relationship with other nations.
And so it is troubling to be required to issue a decision
that might well frustrate a policy of importance to our own
Government.
As the Court explains, however, the structure and word
ing of §1447(d) (2000 ed.) leave us no other choice. There
is no latitude for us to reach a different result. If it is true
that the statute as written and the judgment we issue
today are inconsistent with the intent and purpose Con
gress wanted to express, then the immediate jeopardy that
foreign sovereign entities will now face should justify
urgent legislative action to enact the necessary statutory
revisions.
Cite as: 551 U. S. ____ (2007) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–85
_________________
POWEREX CORP., PETITIONER v. RELIANT ENERGY
SERVICES, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 18, 2007]
JUSTICE BREYER, with whom JUSTICE STEVENS, joins,
dissenting.
Unlike the Court, I believe the District Court’s remand
order is reviewable on appeal. And, reviewing the decision
below, I would hold that Powerex is an organ of the Gov
ernment of British Columbia.
I
The majority concludes that 28 U. S. C. §1447(d) took
from the Ninth Circuit the power to review the District
Court’s remand decision. The statutory argument is a
strong one. Section 1447(c) says that, “[i]f at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be re
manded” to state court; and §1447(d), referring to subsec
tion (c), adds that a district court “order remanding a case
to the State court from which it was removed is not re
viewable on appeal or otherwise.” Thermtron Products,
Inc. v. Hermansdorfer, 423 U. S. 336, 345–346 (1976).
Nonetheless this Court has found exceptions to §1447’s
seemingly blanket prohibition. See, e.g., id., at 350–352;
Osborn v. Haley, 549 U. S. ___, ___ (2007) (slip op. at 12–
16). In doing so, the Court has recognized that even a
statute silent on the subject can create an important
2 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
BREYER, J., dissenting
conflict with §1447(d)’s “no appellate review” instruction.
And where that is so, we have, in fact, resolved the conflict
by reading a later more specific statute as creating an
implicit exception to §1447(d) (though Osborn did not say
as much). Id., at___ (slip op., at 15–16).
The subject matter of the Foreign Sovereign Immunity
Act of 1976’s removal provision, foreign sovereigns, is
special. And the FSIA creates serious conflicts with
§1447(d)’s “no appellate review” instruction. The FSIA is
later enacted and subject-matter specific. Consequently, I
would read into the FSIA a similar exception to §1447(d),
applicable here.
Osborn illustrates my starting point: a conflict with
§1447(d). The Westfall Act, the specific statute at issue in
that case, provides for removal to federal court of a state-
court lawsuit brought against a federal employee where
the state-court lawsuit attacks employee actions within
the scope of federal employment. 28 U. S. C. §§2679(d)(2)–
(3). The Westfall Act authorizes the Attorney General to
certify that the employee’s actions at issue fall within the
scope of federal employment. And the Westfall Act says
that the certification “conclusively establish[es]” that fact
for removal purposes. §§2679(d)(1)–(2). In Osborn, we
pointed out that §1447(d) would permit a district court,
without appellate review, to remand in the face of a con
trary Attorney General certification. 549 U. S., at ___ (slip
op., at 14). Doing so, without appellate review, would
thereby permit the district court to substitute its own
judgment (as to whether the employee’s actions were
within the federal “scope of employment”) for that of the
Attorney General. And the district court would thereby
have the unreviewable power to make the Attorney Gen
eral’s determination nonconclusive, contrary to what the
statute says. Because §1447(d), if applied, would render
this statutory instruction “weightless,” we found a conflict
with §1447(d). Ibid. And we resolved the conflict in favor
Cite as: 551 U. S. ____ (2007) 3
BREYER, J., dissenting
of the later enacted, more specific Westfall Act. Id., at ___
(slip op., at 15).
A similarly strong conflict exists here, albeit not with a
separate removal provision, but rather with a comprehen
sive statutory scheme. To understand how that is so,
imagine a case not now before us. Imagine that a private
plaintiff brings a lawsuit in state court against a noncom
mercial division of a foreign nation’s government, say, a
branch of that nation’s defense ministry or, for that mat
ter, against the foreign nation itself. The FSIA provides a
specific guarantee that such a suit cannot continue (except
in certain instances that, for purposes of my example, are
not relevant). 28 U. S. C. §§1602–1605. It achieves this
objective by authorizing the foreign government to remove
the case to federal court where a federal judge will deter
mine if the defendant is indeed a foreign government and,
if so, dismiss the case. §1441(d).
What happens if the foreign sovereign removes the case
to federal court only to have the federal judge mistakenly
remand the case to state court? As in an ordinary case,
the lawsuit may well continue in the state tribunal. But,
if so, unlike the ordinary case (say, a wrongly remanded
diversity or “arising under” case) but like Osborn, the
removing party will have lost considerably more than a
choice of forum. The removing party will have lost that
which a different portion of the special statute sought to
provide, namely, the immunity from suit that the FSIA
sought to assure.
That assurance forms a separate and central FSIA
objective. The very purpose of sovereign immunity is to
avoid subjecting a foreign sovereign to the rigors and
“inconvenience of suit.” Dole Food Co. v. Patrickson, 538
U. S. 468, 479 (2003). In such a case, a state court likely
will feel bound by the federal court’s prior judgment on the
lack of immunity (under state law-of-the-case doctrine)
and this Court’s review (of an adverse state-court judg
4 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
BREYER, J., dissenting
ment) will come too late. In such a case, the FSIA’s basic
objective (unrelated to choice of forum) will have become
“weightless.” Osborn, supra, at ___ (slip op., at 14).
It is difficult to see how this conflict between the FSIA’s
basic objective and §1447(d) is any less serious than the
conflict at issue in Osborn. The statutory objective here,
harmonious relations with foreign sovereigns, is more, not
less, important. See Ex parte Peru, 318 U. S. 578, 587
(1943) (exercising original writ to protect sovereign from
erroneous District Court conclusion that it was not im
mune from suit). See also, e.g., Republic of Mexico v.
Hoffman, 324 U. S. 30, 35 (1945); Schooner Exchange v.
McFaddon, 7 Cranch 116 (1812); H. R. Rep. No. 94–1487,
p. 13 (1976) (hereinafter H. R. Rep.) (FSIA intended to
avoid “adverse foreign relations consequences”).
Neither is a §1447(d) exception here likely to undermine
§1447(d)’s basic purpose: avoiding the procedural delay
that an added federal appeal would create. Avoiding that
delay is important in a typical case where only choice of
forum is at issue. But that same delay is necessary, in
deed, crucial, in the special case where a foreign sover
eign’s immunity from suit is at issue. At the same time,
foreign affairs is itself an exceptional topic, with special
risks, special expertise, and special federal authority;
hence, our finding a §1447(d) exception in the FSIA is
unlikely to lead courts to create a series of exceptions
affecting more typical cases. See, e.g., Kircher v. Putnam
Funds Trust, 547 U. S. ___, ___ (2006) (slip op., at 5–6)
(avoidance of delay is §1447(d)’s basic purpose).
Finally, as in Osborn, the FSIA is a specific, later en
acted statute. Cf. Osborn, supra, at ___ (slip op., at 15); see
generally Long Island Care at Home, Ltd. v. Coke, ante, at
___ (slip op., at 10) (where statutory provisions are incon
sistent, “normally the specific governs the general”);
Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384–
385 (1992); Simpson v. United States, 435 U. S. 6, 15
Cite as: 551 U. S. ____ (2007) 5
BREYER, J., dissenting
(1978).
Taken together, these considerations lead me to believe
that, were a foreign noncommercial government entity’s
immunity from suit at issue, the FSIA would conflict with
§1447(d), leading a court properly to read the FSIA as
implicitly creating an exception to §1447(d), and thereby
protecting the sovereign’s right to appeal a wrongful re
mand order.
The removing defendant in this case, of course, is not a
foreign sovereign immune from suit. It is a foreign gov
ernmental entity that acts in a commercial capacity and
consequently is subject to suit. 28 U. S. C. §1605(a)(2).
But the FSIA nonetheless creates an important, though
different, conflict. That conflict arises because a different
FSIA provision says, “[u]pon removal the action shall be
tried by the court without jury.” §1441(d) (emphasis
added); see H. R. Rep., at 33 (“[O]ne effect of removing an
action under the new section 1441(d) will be to extinguish
a demand for a jury trial made in the state court”); S. Rep.
No. 94–1310, p. 32 (1976) (hereinafter S. Rep.) (same). A
wrongful remand would destroy this statutory right. The
state court trial would often proceed with a jury; and it is
questionable whether even this Court could later set aside
an adverse state court judgment for that reason—at least
Congress seems to have thought as much. See H. R. Rep.,
at 33 (“Because the judicial power of the United States
specifically encompasses actions between a State, or the
Citizens thereof, and foreign States, this preemption of
State court [jury trial] procedures in cases involving for
eign sovereigns is clearly constitutional” (emphasis added;
citations and internal quotation marks omitted)); S. Rep.,
at 32 (same).
The conflict is important, this case is special, and we
should resolve it by reading the FSIA as implicitly pre
empting the general application of §1447(d). Indeed, I do
not see how we could read the FSIA differently in this
6 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
BREYER, J., dissenting
respect depending upon whether commercial or non
commercial sovereign activity is at issue. For these rea
sons, I believe that the Ninth Circuit correctly determined
that it possessed legal authority to review the case.
It is true, as the majority states, that Congress has in
other contexts carved out certain removal orders as being
specifically reviewable on appeal. Ante, at 12. The major
ity reads these specific statutes to suggest that had Con
gress intended §1447(d) not to apply in FSIA cases, it
could simply have said so. Ibid. However, in fact, for the
reasons articulated above, I believe that Congress must
have assumed the FSIA overrode §1447. Congress enacted
the FSIA soon after the Court’s decision in Thermtron
Products, 423 U. S., at 345, held that implicit §1447(d)
exceptions might exist. Cf. Osborn, 549 U. S., at ___ (slip
op., at 13–15) (despite statutory silence, reading Westfall
Act as overriding §1447(d)). And, as I have said, the FSIA
would otherwise fail to achieve Congress’ basic objectives.
Context and purpose make clear that few if any members
of Congress could have wanted to block appellate review
here. Were the Court to pay greater attention to statutory
objectives and purposes and less attention to a technical
parsing of language, it might agree. Were it to agree, we
would exercise our interpretive obligation, not “lawmaking
power,” ante, at 13, n. 5, with increased fidelity to the
intention of those to whom our Constitution delegates that
lawmaking power, namely the Congress of the United
States. And, law in this democracy would be all the better
for it.
II
I part company with the Ninth Circuit on the merits.
The Circuit held that the District Court’s remand was
proper because, in its view, Powerex is not “an organ of a
. . . political subdivision” of a “foreign state.” 28 U. S. C.
Cite as: 551 U. S. ____ (2007) 7
BREYER, J., dissenting
§1603(b)(2) (emphasis added). Hence, it is not an “agency
or instrumentality” of a foreign government and falls
outside the scope of the FSIA’s provision authorizing
removal. §1603(a); see generally California v. NRG En
ergy Inc., 391 F. 3d 1011, 1025–1026 (2004).
In my view, however, Powerex is “an organ” of the Prov
ince of British Columbia, a “political subdivision” of Can
ada. The record makes clear that Powerex is a govern
ment-owned and government-operated electric power
distribution company, not meaningfully different from
ordinary municipal electricity distributors, the Tennessee
Valley Authority, or any foreign “nationalized” power
producers and distributors, such as Britain’s former Cen
tral Electricity Generating Board or Electricité de France.
See generally C. Harris, Electricity Markets: Pricing,
Structures, and Economics 15–20 (2006) (summarizing
features of electricity companies in United States and
Europe, among others); J. Nelson, Marginal Cost Pricing
in Practice 3–6, 32, 37 (1964) (summarizing features of
France hydropower industry). See also http://tva.com/
abouttva/index.htm (summarizing general features of
Tennessee Valley Authority) (all Internet materials as
visited June 8, 2007, and available in Clerk of Court’s case
file); Government Corporation Control Act, §101, 59 Stat.
597–598 (describing Tennessee Valley Authority as
“ ‘wholly owned Government Corporation’ ”); Lebron v.
National Railroad Passenger Corporation, 513 U. S. 374,
388–389 (1995) (noting that corporate entities in Govern
ment Corporation Control Act were incorporated by other
government-owned corporations); Dept. of Labor, Bureau
of Labor Statistics, Career Guide to Industries, Utilities,
online at http://www.bls.gov/oco/cg/cgs018.htm (describing
features of public run utilities); G. Rothwell & T. Gómez,
Electricity Economics: Regulation and Deregulation 129–
241 (2003) (comparing electricity markets and industries
in California and various foreign nations).
8 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
BREYER, J., dissenting
Powerex is itself owned and operated by BC Hydro, an
entity that all apparently concede is governmental in
nature. Brief for Respondents 38–40, 42. British Colum
bia’s statutes create BC Hydro as a kind of government
agency to produce water-generated electric power. Power
Measures Act, S. B. C., ch. 40 (1964); App. to Pet. for Cert.
52a, 118a, 163a–169a. BC Hydro has a board of directors,
all of whom are appointed by British Columbia’s govern
ment. Id., at 58a–59a. It is an “agent of the [provincial]
government and its powers may be exercised only as an
agent of the government.” Hydro Power Authority Act,
R. S. B. C. ch. 212, §3(1) (1996). The District Court con
cluded that BC Hydro is, in fact, a foreign sovereign entity
entitled to immunity. 391 F. 3d, at 1024.
British Columbia’s Minister of Energy issued a written
directive ordering that BC Hydro create a subsidiary,
Powerex, to carry out the specialized tasks of exporting
hydro-generated electric power and of importing power,
which it is then to distribute to British Columbia resi
dents. App. 235–239, 250–251, 267. Powerex specifically
carries out these obligations in accordance with various
treaties between Canada and the United States. App.
133–155; App. to Pet. for Cert. 55a; see Treaty Between
the United States of America and Canada Relating to
Cooperative Development of the Water Resources of the
Columbia River Basin, Jan. 17, 1961, [1964] 15 U. S. T.
1555, T.I.A.S. No. 5638, App. to Pet. for Cert. 61a–82a;
Treaty Between Canada and the United States of America
Relating to the Skagit River and Ross Lake, and the Seven
Mile Reservoir on the Pend d’Oreille River, Apr. 2, 1984,
1469 U. N. T. S. 309, T.I.A.S. No. 11088, App. to Pet. for
Cert. 138a–145a); British Columbia-Seattle Agreement
(Mar. 30, 1984), App. 160–171.
Powerex’s board members consist of some of BC Hydro’s
board members and other members whom those members
appoint. App. 233–235. The government’s comptroller
Cite as: 551 U. S. ____ (2007) 9
BREYER, J., dissenting
general reviews Powerex’s financial operations and regu
lates the terms under which it conducts business. Finan
cial Administration Act, R. S. B. C., ch. 138, §§4.1,
8(2)(c)(i), 75, 79.3 (1996) (FAA), Addendum to Brief for
Petitioner 34–36, 40–42 (hereinafter Addendum). British
Columbia’s fiscal control statute refers to Powerex as a
“ ‘government body.’ ” FAA §1, Addendum 31, 33. And
other British Columbia laws refer to its employees as
“ ‘public office holders.’ ” Lobbyists Registration Act,
S. B. C., ch. 42, §1 (2001), Addendum 50. Powerex pays no
income taxes. See Income Tax Act, R. S. C., ch. 1,
§§149(1)(d), (d.2) (5th Supp., 1985), Addendum 45; App. to
Pet. for Cert. 58a; Brief for Petitioner 31. The British
Columbian government, through BC Hydro, has sole
beneficial ownership and control of Powerex. App. 267. If
Powerex earns a profit, that profit must be rebated di
rectly or indirectly to British Columbia’s residents. App.
215, 238. I can find no significant difference between
Powerex and the classical government entities to which I
previously referred. Supra, at ___.
The Ninth Circuit noted that Powerex may earn a profit
and that the Government of British Columbia does not
provide financial support. And the Ninth Circuit thought
these facts made a critical difference. But a well-run
nationalized firm should make a reasonable profit; nor
should it have to borrow from the government itself. See,
e.g., Nelson, supra, at 8–12; Harris, Electricity Markets, at
125, 130–132; Rothwell & Gómez, supra, at 3–4. The
relevant question is not whether Powerex earns a profit
but where does that profit go? Here it does not go to pri
vate shareholders; it goes to the benefit of the public in
payments to the province and reduced electricity prices.
App. 215, 238.
The Ninth Circuit also pointed out that certain provin
cial regulations that apply to other governmental depart
ments do not apply to Powerex. That fact proves little.
10 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
BREYER, J., dissenting
The Tennessee Valley Authority, which is “perhaps the
best known of the American public corporations,” First
Nat. City Bank v. Banco Para el Comercio Exterior de
Cuba, 462 U. S. 611, 625, n. 15 (1983), is not subject to
certain federal regulations regarding hiring that apply to
other governmental departments. See, e.g., 16 U. S. C.
§831b.
In sum, Powerex is the kind of government entity that
Congress had in mind when it wrote the FSIA’s “commer
cial activit[y]” provisions. See generally 28 U. S. C. §1602
et seq.; H. R. Rep., at 15; S. Rep., at 14; Banco, supra, at
624–625.
For these reasons, I believe we should consider, and
reverse, the Ninth Circuit’s determination. With respect, I
dissent.