United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2007 Decided January 18, 2008
No. 06-7193
DAEVON BARKSDALE,
APPELLEE
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cv01059)
Bruce P. Heppen argued the cause for appellant. With him
on the briefs were Carol B. O’Keeffe, Mark F. Sullivan, and
Frederic H. Schuster.
Richard F. Johns, pro hac vice, argued the cause for
appellee. With him on the brief was Hubert M. Schlosberg.
Before: GINSBURG, Chief Judge, GARLAND, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
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GINSBURG, Chief Judge: The Washington Metropolitan
Area Transit Authority (WMATA) appeals an order of the
district court remanding this case back to the Superior Court of
the District of Columbia, from which it had been removed at the
instance of WMATA. We have jurisdiction to hear WMATA’s
appeal pursuant to 28 U.S.C. § 1291. We hold the district court
lacked the power to remand this case, and we return it to the
district court for further proceedings.
I. Background
Created by an Interstate Compact, WMATA operates the
mass transit system serving the District of Columbia and
contiguous suburban areas of Maryland and Virginia. Pub. L.
No. 89-774, 80 Stat. 1324 (1966) (codified at D.C. Code § 9-
1107.01). Barksdale claims he was injured as a result of
WMATA’s negligence while riding an escalator in a WMATA
subway station.
Barksdale filed his claim in the Superior Court of the
District of Columbia, from which WMATA removed it to the
district court pursuant to section 81 of the Compact, which
provides:
The United States District Courts shall have original
jurisdiction, concurrent with the courts of Maryland,
Virginia, and the District of Columbia, of all actions
brought by or against [WMATA] .... Any such action
initiated in a State or District of Columbia court shall be
removable to the appropriate United States District Court in
the manner provided by 28 U.S.C. § 1446.
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D.C. Code § 9-1107.01. Barksdale’s counsel, claiming he was
not admitted to the bar of the district court and lacked the
technology needed to comply with the district court’s mandatory
electronic case filing procedures, asked the district court to
remand the case to Superior Court.* The district court obliged
and WMATA then appealed the remand order.
II. Analysis
WMATA contends the district court had no power to
remand this case or, if it had, then it abused that power. Before
reaching the merits of WMATA’s case, we address Barksdale’s
objection that we do not have jurisdiction to hear this appeal.
See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711 (1996)
(“We first consider whether the Court of Appeals had
jurisdiction to hear Allstate’s appeal” of the district court order
remanding the case to state court).
A. Appellate Jurisdiction
Barksdale contends we lack jurisdiction under 28 U.S.C. §
1291 because the remand order is not a “final” order and, in any
event, 28 U.S.C. § 1447(d) specifically bars review of “[a]n
order remanding the case to the State court from which it was
removed.” We hold that neither statute bars the present appeal.
Generally, this court has jurisdiction to review an order of
the district court only if it is a final order. 28 U.S.C. § 1291.
Obviously, the order remanding this case to Superior Court did
*
As it turns out, counsel was a member of the district court
bar and Superior Court also requires electronic filing.
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not terminate the case, but it is nonetheless a final order for
purposes of § 1291 under the “collateral order” doctrine of
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47
(1949). As the Supreme Court has explained that doctrine, an
order is final and reviewable if it “[1] conclusively determine[s]
the disputed question, [2] resolve[s] an important issue
completely separate from the merits of the action, and [3] [will]
be effectively unreviewable on appeal from a final judgment.”
Will v. Hallock, 546 U.S. 345, 349 (2006) (quotation marks
omitted) (bracketed numbers in original).
Barksdale argues the collateral order doctrine does not
apply to the present remand order because “the issue presented
in this case is not one of a serious and unsettled nature ...,
WMATA routinely litigates these types of matters in the
Superior Court ..., [and] the District Court’s decision to remand
was merely an exercise of discretion.” This argument is
foreclosed by Quackenbush. There the Supreme Court held that
a remand order (issued in that case pursuant to the doctrine of
Burford abstention) was a collateral order appealable pursuant
to § 1291. The Court explained that the remand order
puts the litigants in this case effectively out of court[;] ...
conclusively determines an issue that is separate from the
merits, namely, the question whether the federal court
should decline to exercise its jurisdiction in the interest of
comity and federalism[;] ... [addresses the right to litigate in
federal court, which is] sufficiently important to warrant an
immediate appeal[;] ... [and] will not be subsumed in any
other appealable order entered by the District Court.
Quackenbush, 517 U.S. at 714. In all four of those respects, the
remand order at issue here is indistinguishable from the remand
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order at issue in Quackenbush. We conclude, therefore, we have
jurisdiction to hear this appeal under § 1291.
Barksdale contends further that, even if the remand order
would otherwise be appealable as far as § 1291 is concerned,
review of the present order is nonetheless barred by 28 U.S.C.
§ 1447(d). That section provides in pertinent part: “An order
remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise.”
The Supreme Court has held § 1447(d) bars review “only
[of] remand orders issued under § 1447(c) and invoking the
[mandatory] grounds specified therein,” Osborn v. Haley, 127
S. Ct. 881, 893 (2007) (second alteration in original), namely, “a
defect in removal procedure or lack of subject matter
jurisdiction,” Kircher v. Putnam Funds Trust, 126 S. Ct. 2145,
2153 (2006). This is not such a case; Barksdale did not advance
and the district court did not purport to act upon either of the
grounds specified in § 1447(c). Rather, the district court
purported to exercise its discretion in remanding this case for the
convenience of Barksdale’s counsel. This case is thus like
Thermtron Products, Inc. v. Hermansdorfer, in which the
Supreme Court held § 1447(d) did not bar review of an order of
remand based upon “the District Court’s heavy docket,” which
the district court thought “would unjustly delay” the trial. 423
U.S. 336, 344-46, 352 (1976). Hence, we hold § 1447(d) does
not bar the present appeal, and we turn to the merits of the
remand order under review.
B. District Court Authority
WMATA advances two arguments that the district court
erred by remanding this case to Superior Court: First, the court
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was not authorized to remand a case on the ground that Superior
Court would be a more congenial forum for Barksdale’s
counsel; second, section 81 of the Compact grants WMATA
“unreviewable discretion to proceed in a federal forum,” as a
result of which “the federal courts are without authority to
remand a case to state court over WMATA’s objections.” We
do not reach WMATA’s second point because we agree with its
first point – although not with all its analysis; the district court
simply does not have the power to remand a case to a state or
D.C. court for the convenience of counsel.
WMATA, quoting Thermtron, 423 U.S. at 342, argues that
a “case removed under § 1441 ‘may be remanded only in
accordance with § 1447.’” Because § 1447 recognizes only
procedural defect and lack of subject matter jurisdiction as
grounds for remand and, the argument goes, neither ground was
applicable in this case, the remand was improper.
Thermtron’s reading of § 1447 is not by itself dispositive,
however, of the district court’s authority. Subsequent decisions
of the Supreme Court establish that a district court also may
remand a case on certain grounds not expressly authorized by
the statute. In Carnegie-Mellon University v. Cohill, the Court
held “when a [district] court has discretionary jurisdiction over
a removed [pendant] state-law claim and the court chooses not
to exercise its jurisdiction, remand is an appropriate alternative”
to dismissal because it would not make sense to bar, and neither
§ 1447 nor any other statute expressly bars, a district court from
remanding a claim on a ground upon which it might instead
have dismissed the claim. 484 U.S. 343, 353-57 (1988)
(explaining the district court in Thermtron “could not properly
have eliminated the case from its docket, whether by a remand
or by a dismissal. ... [A]n entirely different situation is presented
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when the district court has clear power to decline to exercise
jurisdiction.”). Similarly, in Quackenbush the Court held a
district court may remand a case if it might instead dismiss it
based upon “abstention principles.” 517 U.S. at 730-31.
Considering Thermtron together with Carnegie-Mellon and
Quackenbush, we conclude the district court lacked the power
to remand this case. The district court relied neither on a ground
specified in § 1447 nor on any ground upon which it might
instead have dismissed the case. Rather, the district court
remanded the case simply because Barksdale’s counsel said
Superior Court would be a more congenial forum for him, much
as the district court in Thermtron had remanded that case merely
“because the district court consider[ed] itself too busy to try it.”
423 U.S. at 344. Hence, we hold the district court erred in
remanding Barksdale’s case to Superior Court.
III. Conclusion
In sum, we have jurisdiction to hear this appeal of the
district court’s remand order pursuant to 28 U.S.C. § 1291 and
the collateral order doctrine; nothing in 28 U.S.C. § 1447(d), as
interpreted in Thermtron, bars our review; and the district court
lacks the power to remand a case for the convenience of counsel.
Accordingly, we reverse the order of remand and return this case
to the district court for further proceedings.
So ordered.