FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ATLANTIC NATIONAL TRUST LLC, a
Florida limited liability company,
Plaintiff-Appellee,
v.
MT. HAWLEY INSURANCE COMPANY,
a Delaware corporation,
Defendant-Appellant,
LEBANON HARDBOARD LLC, an No. 09-35716
Oregon limited liability company;
TRITALENT FUNDING GROUP, LLC, D.C. No.
6:09-cv-06054-TC
an Oregon limited liability
company, OPINION
Defendants-Appellees,
and
CRUMP INSURANCE SERVICES, INC., a
Texas corporation; CHAMBERLAIN
INSURANCE AGENCY LLC, an
Oregon limited liability company,
Defendants.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted
May 7, 2010—Portland, Oregon
Filed September 2, 2010
Before: Andrew J. Kleinfeld, Carlos T. Bea and
Sandra S. Ikuta, Circuit Judges.
13325
13326 ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE
Opinion by Judge Ikuta
13328 ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE
COUNSEL
Brian E. Sims, Morison Holden Derekwetzky & Prough, LLP,
Walnut Creek, California, for appellant Mt. Hawley Insurance
Co.
John Folawn, Folawn Alterman Richardson LLP, Portland,
Oregon, for appellee Atlantic National Trust, LLC.
Paul G. Dodds, Brownstein, Rask, Sweeney, Kerr, Grim,
DeSylvia & Hay, LLP, Portland, Oregon, for appellee Trita-
lent Funding Group, LLC.
Dean D. DeChaine, Miller Nash LLP, Portland, Oregon, for
appellee Lebanon Hardboard, LLC.
OPINION
IKUTA, Circuit Judge:
Today we hold that we lack appellate jurisdiction to review
a federal district court order remanding a case to state court
ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE 13329
based on a ground colorably characterized as a “defect” for
purposes of 28 U.S.C. § 1447(c). See 28 U.S.C. § 1447(d);
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224
(2007).
I
In October 2008, a fire caused over $10 million in damage
to buildings and property owned by Lebanon Hardboard,
LLC. Atlantic National Trust, LLC (“Atlantic”) had loaned
money to Lebanon Hardboard secured by interests in the
buildings and property. The loan agreements required Leba-
non Hardboard to maintain fire insurance on the property for
the benefit of Atlantic, and to assign all insurance proceeds to
Atlantic. Tritalent Funding Group, LLC (“Tritalent”) had also
loaned money to Lebanon Hardboard and had likewise
obtained a security interest in the buildings and property.
Before the fire, Lebanon Hardboard submitted an applica-
tion for fire insurance to Crump Insurance Services, Inc.
(“Crump”) and Chamberlain Insurance Agency LLC
(“Chamberlain”), both of which were agents of Mt. Hawley
Insurance Company (“Mt. Hawley”). Mt. Hawley issued an
insurance binder (the actual policy was not delivered until
after the fire) to Lebanon Hardboard with a $4 million per
occurrence limit, but the binder did not designate Atlantic or
Tritalent as mortgagees or loss payees.
After the fire, Atlantic demanded payment under the policy
from Lebanon Hardboard and Mt. Hawley. Mt. Hawley
denied that Atlantic was covered by the insurance policy or
that it had any obligation to pay Atlantic. On February 20,
2009, Atlantic filed a complaint for damages and declaratory
relief against Mt. Hawley, Crump, Chamberlain, Lebanon
Hardboard, and Tritalent in Oregon state court. Atlantic
sought, among other things, reformation of the contract and a
declaration that Atlantic’s rights to the insurance proceeds
were superior to Tritalent’s and Lebanon Hardboard’s. Atlan-
13330 ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE
tic gave Lebanon Hardboard and Mt. Hawley courtesy copies
of the complaint on February 25, 2009.
The next day, Mt. Hawley removed the case to federal
court without the consent of the other defendants. At that
time, neither Mt. Hawley nor any of the other defendants had
been served. Lebanon Hardboard and Tritalent waived service
on March 3.
On March 19, 21 days after Mt. Hawley removed the case,
Lebanon Hardboard and Tritalent filed a motion in district
court to remand the case to state court. The next day, Atlantic
joined the motion to remand.
A magistrate recommended that the district court remand
the action because Lebanon Hardboard and Tritalent had not
consented to removal and they timely exercised their right
under 28 U.S.C. § 1448 to choose a state forum.1 The magis-
trate reasoned that removal of a complaint to federal court is
subject to the “unanimity rule” set forth in Chicago Rock
Island & Pacific Railway Co. v. Martin, 178 U.S. 245, 248
(1900), which holds that all defendants must consent to or
join in a removal, and here Mt. Hawley had violated that rule
by failing to obtain the consent of its co-defendants. The dis-
trict court adopted the magistrate’s findings and recommenda-
tion and remanded the case to state court.2 This timely appeal
followed.
1
28 U.S.C. § 1448 provides that after a case has been removed to federal
court, the plaintiff may complete or perfect service on a defendant who
had not been properly served before removal, but states that “[t]his section
shall not deprive any defendant upon whom process is served after
removal of his right to move to remand the case.”
2
Because the district court adopted the magistrate’s findings and recom-
mendation in full, we use the term “district court” to refer to both the dis-
trict court’s and the magistrate’s conclusions.
ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE 13331
II
The issue in this case is whether we have appellate jurisdic-
tion to consider the appeal of the district court’s remand
order. As always, “we have jurisdiction to determine whether
we have jurisdiction to hear the case.” Aguon-Schulte v.
Guam Election Comm’n, 469 F.3d 1236, 1239 (9th Cir. 2006).
Because the scope of our authority to review an allegedly
erroneous remand order is not entirely clear, we begin with a
review of the legal framework.
A
[1] “The beginning point of statutory interpretation must
be the language of the statute.” Am. Bird Conservancy v.
F.C.C., 545 F.3d 1190, 1193 (9th Cir. 2008) (internal quota-
tion marks omitted). Under 28 U.S.C. § 1447(d), “[a]n order
remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise . . . .”3 The
Supreme Court has interpreted this section more narrowly
than its plain language would indicate. See Thermtron Prods.
Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976), superseded
by statute on other grounds, 28 U.S.C. § 1447(c). As
explained in Thermtron, § 1447(d) prohibits review only of
remand orders issued pursuant to a ground enumerated in
§ 1447(c). Id. At the time Thermtron was decided, § 1447(c)
stated, in part: “If at any time before final judgment it appears
that the case was removed improvidently and without jurisdic-
tion, the district court shall remand the case, and may order
the payment of just costs.” Thermtron, 423 U.S. at 342.
Thermtron indicated that the case at issue had not been
removed “improvidently” because there was “no express stat-
3
Section 1447(d) provides an exception to this prohibition on appellate
review, for “an order remanding a case to the State court from which it
was removed pursuant to section 1443 of this title . . . .” The cited section,
28 U.S.C. § 1443, refers to certain civil rights cases, and therefore does
not apply in this case.
13332 ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE
utory provision forbidding the removal” of the action and the
case had been “timely removed in strict compliance with 28
U.S.C. § 1446.” Id. at 344 & n.8. Moreover, the case had not
been removed “without jurisdiction” because the case could
have been filed initially in the district court pursuant to 28
U.S.C. § 1331. Id. at 344.
[2] According to Thermtron, “[i]f a trial judge purports to
remand a case on the ground that it was removed ‘improvi-
dently and without jurisdiction,’ his order is not subject to
challenge in the court of appeals.” Id. at 343. As the Supreme
Court later explained, “[w]here the order is based on one of
the enumerated grounds, review is unavailable no matter how
plain the legal error in ordering the remand.” Briscoe v. Bell,
432 U.S. 404, 413 n.13 (1977); see also Gravitt v. Southwest-
ern Bell Tel. Co., 430 U.S. 723 (1977) (per curiam). Never-
theless, an appellate court can review a remand order when a
trial judge “exceeded his statutorily defined power” by
remanding “a properly removed case on grounds that he had
no authority to consider.” Thermtron, 423 U.S. at 351. In the
matter before it, Thermtron noted that the district court had
remanded the case based on its concern about its “heavy
docket,” which the district court “thought would unjustly
delay plaintiffs in going to trial on the merits of their action.”
Id. at 344. Because docket congestion was not a ground enu-
merated in § 1447(c), Thermtron held that there was appellate
jurisdiction to review and reverse the district court’s decision.
Id. at 345.
B
[3] After Thermtron, Congress amended § 1447(c) several
times. See Powerex, 551 U.S. at 229-30. At present, § 1447(c)
states, in relevant part:
A motion to remand the case on the basis of any
defect other than lack of subject matter jurisdiction
must be made within 30 days after the filing of the
ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE 13333
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.
In Powerex, the Court stated that it would “assume for pur-
poses of this case” that the post-Thermtron amendments to
§ 1447(c) were “immaterial to Thermtron’s gloss on
§ 1447(d),” so that § 1447(d)’s bar on appellate review is lim-
ited to remands based on subject matter jurisdiction and non-
jurisdictional defects. Powerex, 551 U.S. at 230 (citing
Quackenbush v. Allstate Ins. Co., 517 U.S.706, 711-12
(1996)). This assumption is consistent with the Court’s prac-
tice of applying Thermtron’s rule despite the changes in statu-
tory language. See, e.g., Carlsbad Tech. Inc. v. HIF Bio, Inc.,
129 S. Ct. 1862, 1865-66 (2009); Kircher v. Putnam Funds
Trust, 547 U.S. 633, 640-41 (2006); Quackenbush, 517 U.S.
at 711-12; Things Remembered, Inc. v. Petrarca, 516 U.S.
124, 127-28 (1995); Briscoe, 432 U.S. at 413 n.8; Gravitt, 430
U.S. at 724. Our cases have followed the Court’s lead in
assuming that amendments to § 1447(c) are immaterial to
Thermtron’s gloss on § 1447(d). See, e.g., Kamm v. ITEX
Corp., 568 F.3d 752, 754 (9th Cir. 2009) (applying Thermtron
to the present form of § 1447(c) without addressing the
changed statutory language); Executive Software N. Am., Inc.
v. U.S. Dist. Ct., 24 F.3d 1545, 1549 (9th Cir. 1994) (same for
1988 amendments to § 1447(c)).
In applying Thermtron’s rule that § 1447(d) does not pre-
clude all appellate review of remand orders, we have held that
review is appropriate in a number of situations not discussed
in Thermtron. For instance, in order to determine whether we
lack jurisdiction under § 1447(d) in cases where the basis of
a district court’s remand order is unclear, we may “look to the
substance of the order to determine whether it was issued pur-
suant to section 1447(c).” Schmitt v. Ins. Co. of N. Am., 845
F.2d 1546, 1549 (9th Cir. 1988), superseded by statute on
other grounds, 28 U.S.C. § 1447(c). In this vein, we have ana-
13334 ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE
lyzed the basis of a district court’s remand order where the
district court did not identify the ground for its remand,
United Investors Life Ins. Co. v. Waddell & Reed Inc., 360
F.3d 960, 963-64 (9th Cir. 2004), where the order was ambig-
uous, Schmitt, 845 F.2d at 1549, or where it was not clear that
the ground specified by the district court was a ground enu-
merated in § 1447(c), see Kamm, 568 F.3d at 755, 757 (exam-
ining whether a district court’s remand of a breach of contract
action based on the contract’s forum selection clause fell
within § 1447(c)). In those cases, however, we acknowledged
that if the district court had based its remand on a ground enu-
merated in § 1447(c), we would lack jurisdiction to review
whether the district court’s application of that ground was
correct. See, e.g., United Investors, 360 F.3d at 964.
We have also held that we may review remand orders
where the district court exceeded the procedural limitations in
§ 1447(c), even where a district court purported to remand on
a ground enumerated in that statute. For example, we have
reasoned that the plain language of § 1447(c) precludes a dis-
trict court from issuing a remand order sua sponte for a non-
jurisdictional defect, see Kelton Arms Condo. Owners Ass’n,
Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1193 (9th Cir.
2003), or from remanding for such a defect outside of the pre-
scribed 30-day time period, see N. Cal. Dist. Council of
Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034,
1038 (9th Cir. 1995).
However, certain statements in our cases have strayed
beyond the limited review permitted under Thermtron. Most
notably, we have held that “we are not bound by the district
court’s characterization of the basis for its remand order.”
Reddam v. KPMG LLP, 457 F.3d 1054, 1058 (9th Cir. 2006)
(citing Abada v. Charles Schwab & Co., Inc., 300 F.3d 1112,
1117 (9th Cir. 2002)). Thus, even when the district court pur-
ported to remand an action on jurisdictional grounds, we have
held that we can look behind the district court’s ruling to
determine whether the court correctly characterized the basis
ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE 13335
for its remand. In Reddam, for example, two defendants had
removed a state action on the ground that the underlying dis-
pute was subject to an arbitration agreement between the par-
ties. Id. at 1057. When the arbitrator subsequently determined
that it lacked authority to arbitrate, the plaintiffs moved to
remand. Id. The district court granted the motion on the
ground that it lacked subject matter jurisdiction under
§ 1447(c) because of the arbitrator’s determination. Id. Rather
than holding that Thermtron’s construction of § 1447 prohib-
ited our review, we instead held that we were not bound by
the district court’s characterization. Id. at 1058. We justified
our review of the district court’s remand order because its rea-
soning “plainly indicate[d] that the later occurring events [the
arbitrator’s post-removal refusal to arbitrate] were the basis
for the decision,” and such post-removal events “cannot be a
basis for a § 1447(c) remand order.” Id. at 1059. Because we
concluded that the district court erred in holding it lacked sub-
ject matter jurisdiction, we reversed the district court’s
remand order. Id. at 1061; accord Lively v. Wild Oats Mar-
kets, Inc., 456 F.3d 933, 938 (9th Cir. 2006).
C
[4] In 2007, the Supreme Court issued its opinion in
Powerex, narrowing the scope of appellate jurisdiction to
review allegedly erroneous remand orders where the district
court purported to remand under § 1447(c). In Powerex, two
foreign defendants (including Powerex Corp.) and two federal
defendants removed a state court action, alleging that the dis-
trict court had subject matter jurisdiction under 28 U.S.C.
§ 1441(d) (authorizing removal by a “foreign state” as defined
in the Foreign Sovereign Immunities Act) and 28 U.S.C.
§ 1442(a) (authorizing removal by federal agencies).
Powerex, 551 U.S. at 227. After dismissing the two federal
defendants and one of the foreign defendants on immunity
grounds, the district court determined that Powerex Corp. was
not a “foreign state.” Id. Accordingly, the district court
remanded for lack of subject matter jurisdiction. Id. at 228,
13336 ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE
232-33. Powerex Corp. sought review of the district court’s
allegedly erroneous holding that it was not a foreign sover-
eign. Id. at 228. The Supreme Court held, however, that as a
threshold matter there was no appellate jurisdiction to con-
sider this issue. See id. at 234, 239.
[5] First, Powerex rejected the argument that post-removal
events can never constitute a defect in subject matter jurisdic-
tion for purposes of § 1447(c). Id. at 230. The Court explained
that “[n]othing in the text of § 1447(c) supports the proposi-
tion that a remand for lack of subject-matter jurisdiction is not
covered so long as the case was properly removed in the first
instance.” Id. Rejecting the proposed “narrowing construction
of § 1447(c)’s unqualified authorization of remands for lack
of ‘subject matter jurisdiction,’ ” Powerex held that “when a
district court remands a properly removed case because it
nonetheless lacks subject-matter jurisdiction, the remand is
covered by § 1447(c) and thus shielded from review by
§ 1447(d).” Id. at 230-31.
[6] Second, Powerex enunciated the general principle “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.” Id. at 234. The rea-
sons for so narrowly limiting any “look behind the district
court’s characterization,” the Court explained, was to avoid
“[l]engthy appellate disputes about whether an arguable juris-
dictional ground invoked by the district court was properly
such . . . .” Id. at 233-34. Such lengthy disputes would frus-
trate the purpose of § 1447(d), which “reflects Congress’s
longstanding policy of not permitting interruption of the liti-
gation of the merits of a removed case by prolonged litigation
of questions of jurisdiction of the district court to which the
cause is removed.” Id. at 238 (internal quotation marks omit-
ted). In addition, Powerex noted that “the line between mis-
classifying a ground as subject-matter jurisdiction and
ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE 13337
misapplying a proper ground of subject-matter jurisdiction is
sometimes elusively thin.” Id. at 234.
[7] Applying this reasoning to the facts before it, the Court
stated that “[a]s an initial matter, it is quite clear that the Dis-
trict Court was purporting to remand” on the ground of sub-
ject matter jurisdiction, and indeed, that was the only
“plausible explanation of what legal ground the District Court
actually relied upon for its remand . . . .” Id. at 233 (emphases
omitted). Although the Court had not passed on the legal
question before the district court, “whether, when sovereign
immunity bars the claims against the only parties capable of
removing the case, subject-matter jurisdiction exists to enter-
tain the remaining claims,” the Court noted that “the point is
certainly debatable.” Id. at 233-34. Powerex concluded that
“when, as here, the District Court relied upon a ground that
is colorably characterized as subject-matter jurisdiction,
appellate review is barred by § 1447(d).” Id. at 234. As such,
there was no need to “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 Thermtron).” Id. (citation omitted).
[8] Although Powerex involved a remand based on subject
matter jurisdiction under § 1447(c), the Court’s reasons for
holding that “review of the District Court’s characterization of
its remand . . . should be limited to confirming that that char-
acterization was colorable,” id., are equally applicable to
remands relying on a non-jurisdictional defect. Neither the
plain language of § 1447(d) nor Thermtron’s gloss on that
section distinguishes between orders based on jurisdictional
and non-jurisdictional grounds. See Thermtron, 423 U.S. at
343; see also Briscoe, 432 U.S. at 413 n.13. Moreover, appel-
late review of a district court’s characterization of a remand
based on a non-jurisdictional defect would frustrate Con-
gress’s intent to avoid “interruption of the litigation of the
merits of a removed case by prolonged litigation” of proce-
13338 ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE
dural questions. Powerex, 551 U.S. at 238; see also Osborn
v. Haley, 549 U.S. 225, 243 (2007) (holding that § 1447(d) is
an “antishuttling” provision aimed at preventing “prolonged
litigation of questions of jurisdiction of the district court to
which the cause is removed” (internal quotation marks omit-
ted)). And as with jurisdictional defects considered in
Powerex, it is equally difficult to distinguish the line between
“misclassifying a ground” as a defect, and correctly classify-
ing an issue as a defect but then misapplying the law to the
facts of the case. See Powerex, 551 U.S. at 234. Accordingly,
in light of Powerex, when a district court remands a case pur-
porting to rely on a ground enumerated in § 1447(c), we have
appellate jurisdiction to look behind the district court’s char-
acterization of its basis for remand only to determine whether
the ground was “colorable.”
III
[9] In light of these precedents, we must determine
whether we have jurisdiction to review the district court’s
allegedly erroneous remand order. We first consider whether
the district court remanded purporting to rely on a ground
enumerated in § 1447(c). Thermtron, 423 U.S. at 343. We
conduct this part of our review de novo. Kamm, 568 F.3d at
754. In this case, the district court identified the defendant
unanimity rule as the basis for its remand. Because we have
held that a violation of the unanimity rule is a defect under
§ 1447(c), Aguon-Schulte, 469 F.3d at 1240, we conclude that
the district court purported to rely on a legal ground enumer-
ated in § 1447(c) even though the district court did not cite
that statute.
[10] We must next consider whether the district court’s
characterization of the defect in this case was “colorable.”
Powerex, 551 U.S. at 234. The district court reasoned that
under § 1448, a later-served defendant who opts to exercise
its right to choose the state court forum within the 30-day
period provided in § 1447(c) may force a remand to state
ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE 13339
court. Because Lebanon Hardboard and Tritalent made a
timely motion to remand, the district court concluded that a
remand to state court was appropriate. The district court’s rea-
soning establishes that it based the remand order on defendant
non-unanimity; indeed, that is the only “plausible explanation
of what legal ground the District Court actually relied upon
for its remand in the present case.” Powerex, 551 U.S. at 233.
As in Powerex, although we have not passed on the question
whether the defendant non-unanimity rule applies in the pre-
cise circumstances of this case, “the point is certainly debat-
able.” Id. at 233-34. Nor is there any concern here that the
district court has “dressed up” a ground patently not within
§ 1447(c). See Powerex, 551 U.S. at 234. Indeed, Mt. Hawley
does not argue that the district court’s remand order was
based on a ground patently not enumerated in § 1447(c), such
as docket congestion or abstention. Given that the district
court purported to remand the case on the basis of a defect
under § 1447(c), and that characterization of the remand is
colorable, we lack appellate jurisdiction to review this remand
order. See Powerex, 551 U.S. at 234.
Mt. Hawley argues that this conclusion is wrong because
there was no defendant unanimity defect that justified a
remand under § 1447(c), and that we are not bound by the dis-
trict court’s characterization of the basis of remand. In argu-
ing that there was no defendant unanimity defect here, Mt.
Hawley primarily relies on Spencer v. United States District
Court, 393 F.3d 867 (9th Cir. 2004). In Spencer, following
removal to district court, the plaintiffs sought to amend their
complaint to name an additional defendant who was a citizen
of the forum where the complaint had been filed. Id. at 868.
Citing the forum defendant rule, which prohibits removal of
a case when at least one defendant is a citizen of the state in
which the action is filed, see 28 U.S.C. § 1441(b), the plain-
tiffs then moved to remand the action to state court. Spencer,
393 F.3d at 868. We affirmed the district court’s refusal to
remand the case, holding that “[c]hallenges to removal juris-
diction require an inquiry into the circumstances at the time
13340 ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE
the notice of removal is filed.” Id. at 871. If removal is proper
at the time the notice is filed, “subsequent events, at least
those that do not destroy original subject-matter jurisdiction,
do not require remand.” Id.
Mt. Hawley argues that the defendant unanimity rule in this
case is equivalent to the forum defendant rule in Spencer
because both are non-jurisdictional defects that apply only to
defendants “properly joined and serviced in the action.”
Emrich v. Touche Ross & Co., 846 F.2d 1190, 1193 n.1 (9th
Cir. 1988). As such, Mt. Hawley contends, the principles
enunciated in Spencer and Reddam apply: the validity of
removal is determined by the facts as they existed at the time
of the removal, and subsequent events do not require remand.
See Reddam, 457 F.3d at 1059; Spencer, 393 F.3d at 871. In
light of this principle, Mt. Hawley claims there was no una-
nimity defect at the time this case was removed because nei-
ther Lebanon Hardboard nor Tritalent had been properly
joined and served. See Emrich, 846 F.2d at 1193 n.1. Accord-
ing to Mt. Hawley, § 1448 does not help the defendants
because it gives them only the right to bring a motion for
remand for a defect that existed at the time of the removal, a
situation not present here.
Because in Mt. Hawley’s view there was no defect at the
time of removal, Mt. Hawley concludes that the district
court’s remand order “plainly indicates that the later occurring
events were the basis for the decision.” Reddam, 457 F.3d at
1059. Because “[t]hat cannot be a basis for a § 1447(c)
remand order,” id., the district court erred in remanding based
on § 1447(c), and as in Reddam, Mt. Hawley contends, we
can review and reverse this erroneous holding.
We disagree with this reasoning. Mt. Hawley’s analysis is
based on three propositions: (1) defendant non-unanimity is a
defect under § 1447(c) only at the time of removal; (2) § 1448
does not authorize a defendant who was served after removal
to move to remand the case within 30 days after removal for
ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE 13341
lack of unanimity; and (3) we can review a district court’s
remand order when it is plainly wrong. Under Powerex, we
must ask whether these propositions are so clear that the dis-
trict court’s characterization of its remand as being based on
a non-jurisdictional defect was not even colorable. See 551
U.S. at 234.
However, rather than enunciating clearly established law,
Mt. Hawley’s first two propositions raise unsettled questions
that cannot be the basis for holding that the district court’s
remand order failed the minimum standard of being “color-
able.” Spencer did not resolve the issue raised in Mt. Haw-
ley’s first proposition, whether a defendant unanimity issue
that arises after removal can be a defect for purposes of
§ 1447(c). Neither the unanimity rule nor the authority of a
district court to remand based on post-removal events was
before us in Spencer, because in that case we upheld a district
court’s denial of a remand motion based on the forum defen-
dant rule. 393 F.3d at 869. Mt. Hawley has not cited, and we
have not found, any case directly on point. Moreover, as
explained above, Powerex overruled the doctrine that
§ 1447(c) and (d) do not apply when a remand is based on
events occurring after removal. Powerex, 551 U.S. at 230; see
Blackburn v. Oaktree Capital Mgmt., LLC, 511 F.3d 633, 636
(6th Cir. 2008) (“Accordingly, we recognize that our Sixth
Circuit decisions are overruled to the extent they held that a
remand for lack of subject matter jurisdiction pursuant to
§ 1447(c) was reviewable if it was premised on a post-
removal [event].”); Price v. J & H Marsh & McLennan, Inc.,
493 F.3d 55, 60-61 (2d Cir. 2007) (holding that Powerex
overruled Reddam and other cases recognizing the post-
removal-event doctrine). Although Powerex’s rejection of the
post-removal-event doctrine arose in the context of a remand
order based on lack of subject matter jurisdiction, the question
whether that portion of Powerex’s ruling also extends to
remand orders based on non-jurisdictional defects “is cer-
tainly debatable.” 551 U.S. at 233-34. Accordingly, Powerex
13342 ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE
mandates that § 1447(d) deprives us of appellate jurisdiction
to review the remand order.
Nor did Spencer address Mt. Hawley’s second proposition,
whether § 1448 authorizes a defendant who was served after
removal to remand the case within 30 days for lack of una-
nimity when that defect did not exist at the time of the
removal. We have not addressed this issue, and neither has the
Supreme Court.
Mt. Hawley’s third proposition, that under Reddam we can
review a remand order when the district court’s reasoning
indicates it made an error of law, is plainly contrary to
Powerex. As explained above, if the district court purports to
remand on a ground enumerated in § 1447(c), we can look
behind the district court’s stated basis for its remand only if
its characterization is not “colorable.” Powerex, 551 U.S. at
234. Where a remand order “is based on one of the grounds
enumerated in 28 U.S.C. § 1447(c),” and that ground is color-
able, then “review is unavailable no matter how plain the
legal error in ordering the remand.” Kircher, 547 U.S. at 642
(brackets and internal quotation marks omitted). To the extent
Reddam and other cases hold otherwise, they are irreconcil-
able with the holding and reasoning of Powerex and are thus
superseded. See Miller v. Gammie, 335 F.3d 889, 900 (9th
Cir. 2003) (en banc).
[11] Here the district court based its remand order on a
lack of defendant unanimity, which we have held to be a
defect for purposes of § 1447(c). See Aguon-Schulte, 469 F.3d
at 1240. Mt. Hawley’s arguments, based on open legal ques-
tions and a superseded rule of law, have not established that
the district court’s remand on this ground failed to meet
Powerex’s “colorability” standard. See 551 U.S. at 234.
Accordingly, we lack jurisdiction to review Mt. Hawley’s
ATLANTIC NATIONAL TRUST v. MT. HAWLEY INSURANCE 13343
appeal. See 28 U.S.C. § 1447(d).4
DISMISSED.
4
Because we decide on this ground, we do not reach appellees’ argu-
ment that we lack subject matter jurisdiction because the parties are not
completely diverse. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,
549 U.S. 422, 431 (2007) (holding that there is “no mandatory ‘sequenc-
ing of jurisdictional issues,’ ” and we have “leeway ‘to choose among
threshold grounds for denying audience to a case on the merits.’ ” (quoting
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 585 (1999))).