BLACK, Circuit Judge, dissenting:
I respectfully dissent. This is a classic example of the old
adage that "bad facts make bad law." The case is difficult because
the district court erroneously remanded it to state court, but I
believe the majority stands to do even greater harm in attempting
to rectify this mistake.
As stated in the dissent of the opinion relied upon by the
majority, In re Allstate Ins. Co., 8 F.3d 219 (5th Cir. 1993):
The majority opinion expands our power to review remand
orders, contrary to the will of Congress in section
1447(c) and of the Supreme Court in Thermtron Products.
Id. at 224 (Higginbotham, J., dissenting).
In my view, the issue in this case is jurisdictional.1 The
jurisdictional nature of a remand order cannot hinge on the depth
of the district court's inquiry into jurisdiction. Even when a
remand order is erroneous, § 1447(d) prohibits appellate review if
the district court issued the order under § 1447(c). Thermtron
Prods., Inc. v. Hermansdorfer, 96 S. Ct. 584, 589 (1976). By
classifying the issue in this case as procedural rather than
jurisdictional, the majority circumvents this rule by allowing
appellate review of a district court's remand order issued under
§ 1447(c) to determine if jurisdiction "factually" exists. Such a
practice permits an end run around Thermtron Products and
undermines judicial discretion.
1
The amendment to § 1447(c) impacted only remand orders for
procedural defects. My position is therefore unaffected by the
amendment. I am in accord with the jurisdictional analysis in the
Allstate dissent, also written subsequent to the amendment.