Kircher v. Putnam Funds Trust

(Slip Opinion) OCTOBER TERM, 2005 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

KIRCHER ET AL. v. PUTNAM FUNDS TRUST ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT

No. 05–409. Argued April 24, 2006—Decided June 15, 2006
The Securities Litigation Uniform Standards Act of 1998 (Act) specifies
that private state-law “covered” class actions alleging untruth or ma
nipulation “in connection with the purchase or sale” of a “covered” se
curity may not “be maintained in any State or Federal court,” 15
U. S. C. §77p(b), and authorizes removal to federal district court of
“[a]ny covered class action brought in any State court involving a
covered security, as set forth in subsection (b),” §77p(c). “A ‘covered
class action’ is a lawsuit in which damages are sought on behalf of
more than 50 people. A ‘covered security’ is one traded nationally
and listed on a regulated national exchange.” Merrill Lynch, Pierce,
Fenner & Smith Inc. v. Dabit, 547 U. S. ___, ___.
Petitioners, mutual fund investors, filed separate state-court ac
tions, each seeking to assert state-law claims on behalf of a class of
investors allegedly injured by devaluation of their holdings by re
spondent mutual funds. The funds filed notices of removal in each
case stating, among other things, that the actions were removable
under and precluded by the Act. Once removed, however, the Federal
District Court remanded each case to state court on the ground that
it lacked subject-matter jurisdiction on removal because the Act did
not preclude the investors’ claims. Since they were said to have been
injured as “holders” of mutual fund shares, not purchasers or sellers,
the court reasoned, their claims did not satisfy §77p(b)’s “in connec
tion with the purchase or sale” requirement, and the claims could
therefore proceed in state court. The Seventh Circuit acknowledged
that 28 U. S. C. §1447(d) bars review of district court orders remand
ing removed cases for lack of subject-matter jurisdiction, but decided
that the District Court had the last word neither on the characteriza
tion of its decision as jurisdictional nor on the correctness of its con
2 KIRCHER v. PUTNAM FUNDS TRUST

Syllabus

clusion that remand was required. The appeals court considered all
covered class actions involving covered securities, whether precluded
or not, to be removable under the Act, and therefore thought the pre
clusion issue distinct from the jurisdictional issue whether the case
belonged in federal court at all. It held that orders remanding “prop
erly removed” suits as not precluded are substantive and unaffected by
§1447(d), and therefore reviewable. Proposing that the Act reserves to
the Federal Judiciary the exclusive authority to make the preclusion
decision, the court said that treating remand orders in this context as
immunized from appeal by §1447(d) would mean that a major sub
stantive issue would escape review, since it would not be open to
resolution in the state court subject to review by this Court. The Sev
enth Circuit subsequently consolidated the funds’ appeals and de
cided, on the merits, that the Act precludes the investors’ claims.
Held: Orders remanding for want of preclusion under the Act are sub
ject to §1447(d) and its general rule of nonappealability. Pp. 5–14.
(a) Section 1447(d), which states that an “order remanding a case to
the State court from which it was removed is not reviewable on ap
peal,” applies to all remands based on the grounds specified in
§1447(c), including lack of subject-matter jurisdiction. Thermtron
Products, Inc. v. Hermansdorfer, 423 U. S. 336, 343–345. It applies
equally to cases removed under the general removal statute, §1441,
and to those removed under other provisions, see Things Remem
bered, Inc. v. Petrarca, 516 U. S. 124, 128, and its force is not subject to
any statutory exception that might cover this case. The District Court
said that it was remanding for lack of jurisdiction, an unreviewable
ground. Where a remand order is based on one of §1447(c)’s 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. The Seventh
Circuit did not overlook cases like Briscoe, but relied instead on cases
such as Kontrick v. Ryan, 540 U. S. 443, which observed that some
rulings loosely called jurisdictional are patently not jurisdictional in
the strict sense. Viewing this as such a case, the appeals court un
derstood the District Court’s preclusion decision to be substantive,
not jurisdictional, and consequently subject to review. But the Dis
trict Court was correct in understanding its remand order to be dic
tated by a finding that it lacked removal jurisdiction. Section 77p(c)’s
authorization for removal, on which district-court jurisdiction de
pends, is confined to cases “set forth in subsection (b),” i.e., those with
claims of untruth or manipulation. That phrase immediately follows
the §77p(c) language describing removable cases as covered class ac
tions involving covered securities, and the language has no apparent
function unless it limits removal to covered class actions involving
claims like untruth or deception. Legislative history tends to show
 Cite as: 547 U. S. ____ (2006) 3

Syllabus

that this was just what Congress understood. The preclusion deter
mination is jurisdictional, as is the order implementing it. Pp. 5–11.
(b) The Seventh Circuit’s reading was in part motivated by the
court’s erroneous assumption that the Act gives federal courts exclu
sive jurisdiction to decide the preclusion issue. A covered action is
removable if it is precluded, and a defendant can enlist the Federal
Judiciary to decide preclusion, but he can elect to leave the case
where the plaintiff filed it and trust the state court to make the pre
clusion determination. What a state court could do in the first place
it may also do on remand; here, the funds can ask for dismissal on
preclusion grounds when they return to state court. Collateral es
toppel should be no bar to such a revisitation, given that §1447(d)
prevents the funds from appealing the District Court’s decision.
While the state court cannot review the decision to remand in an ap
pellate way, it is free to reject the remanding court’s reasoning. Id.,
at 583. There is no reason to doubt that the state court in this litiga
tion will duly apply Dabit’s holding that holder claims are embraced
by §77p(b), but this Court can review any claim of error on that point.
Pp. 11–14.
403 F. 3d 478, vacated and remanded.

SOUTER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO,
JJ., joined, and in which SCALIA, J., joined as to Parts I, III, and IV.
SCALIA, J., filed an opinion concurring in part and concurring in the
judgment.
 Cite as: 547 U. S. ____ (2006) 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. 05–409
_________________

CARL KIRCHER, ET AL., PETITIONERS v. PUTNAM

FUNDS TRUST ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 15, 2006]

JUSTICE SOUTER delivered the opinion of the Court.
Title 28 U. S. C. §1447(d) limits appellate review of a
district court order remanding a case from federal to state
court. The question here is whether an order remanding a
case removed under the Securities Litigation Uniform
Standards Act of 1998 is appealable, notwithstanding
§1447(d). We hold it is not.
I
The Private Securities Litigation Reform Act of 1995
(Reform Act), 109 Stat. 737, targeted “perceived abuses of
the class-action vehicle in litigation involving nationally
traded securities,” Merrill Lynch, Pierce, Fenner & Smith
Inc. v. Dabit, 547 U. S. ___, ___ (2006) (slip op., at 8), and
put limits on federal securities class actions. But Congress
soon discovered that “[r]ather than face the obstacles set in
their path by the Reform Act, plaintiffs and their represen
tatives [were] bringing class actions under state law, often
in state court,” id., at ___ (slip op., at 9). To block this
bypass of the Reform Act, Congress enacted the Securities
Litigation Uniform Standards Act of 1998 (Act), 112 Stat.
3227; see Dabit, supra, at ___ (slip op., at 8–10).
2 KIRCHER v. PUTNAM FUNDS TRUST

Opinion of the Court

The Act has a preclusion provision1 and a removal pro
vision2: it provides that private state-law “covered” class
actions alleging untruth or manipulation in connection
with the purchase or sale of a “covered” security may not
“be maintained in any State or Federal court,” 112 Stat.
3228 (codified at 15 U. S. C. §77p(b)),3 and it authorizes
removal to federal district court of “[a]ny covered class
action brought in any State court involving a covered
security, as set forth in subsection (b),” 112 Stat. 3228
(codified at §77p(c)). “A ‘covered class action’ is a lawsuit
in which damages are sought on behalf of more than 50
people. A ‘covered security’ is one traded nationally and
listed on a regulated national exchange.” Dabit, supra, at
——————
1 “No covered class action based upon the statutory or common law of

any State or subdivision thereof may be maintained in any State or
Federal court by any private party alleging—
“(1) an untrue statement or omission of a material fact in connection
with the purchase or sale of a covered security; or
“(2) that the defendant used or employed any manipulative or decep
tive device or contrivance in connection with the purchase or sale of a
covered security.” 112 Stat. 3228 (codified at 15 U. S. C. §77p(b)).
The preclusion provision is often called a preemption provision; the
Act, however, does not itself displace state law with federal law but
makes some state-law claims nonactionable through the class action
device in federal as well as state court. See Merrill Lynch, Pierce,
Fenner & Smith Inc. v. Dabit, 547 U. S. ___, ___ (2006) (slip op., at 15)
(“The Act does not deny any individual plaintiff, or indeed any group of
fewer than 50 plaintiffs, the right to enforce any state-law cause of
action that may exist”).
2 “Any covered class action brought in any State court involving a

covered security, as set forth in subsection (b) of this section, shall be
removable to the Federal district court for the district in which the
action is pending, and shall be subject to subsection (b) of this section.”
112 Stat. 3228 (codified at 15 U. S. C. §77p(c)).
3 The Act amends “in substantially identical ways,” Dabit, supra, at

___, n. 6 (slip op., at 10, n. 6), both the Securities Act of 1933, 48 Stat.
74, and the Securities Exchange Act of 1934, 48 Stat. 881. For the sake
of simplicity, the Seventh Circuit relied exclusively on the amendments
to the Securities Act of 1933, and for ease of reference we will do the
same.
 Cite as: 547 U. S. ____ (2006) 3

Opinion of the Court

___ (slip op., at 10–11) (footnotes omitted).
Petitioners are eight groups of investors holding mutual
fund shares, who filed separate actions in Illinois state
courts, each group seeking to represent a class of investors
allegedly injured by devaluation of their holdings by re
spondents (mutual funds, investment advisors, and an
insurance company) (hereinafter collectively the funds).4
The eight complaints asserted only state-law claims, such
as negligence and breach of fiduciary duty.
The funds filed notices of removal to federal district
court in each case stating, among other things, that the
actions were removable under and precluded by the Act.
Once in the District Court, however, the investors argued
that the cases should be remanded for lack of subject
matter jurisdiction, and in separate orders the District
Court for the Southern District of Illinois remanded each
case to state court on the ground that the District Court
lacked subject matter jurisdiction on removal because the
Act did not preclude the investors’ claims. Since the in
vestors were said to have been injured as “holders” of
mutual fund shares, not purchasers or sellers, the District
Court reasoned, their claims did not satisfy the “in connec
tion with the purchase or sale” requirement of the Act’s
preclusion provision, §77p(b),5 and the claims could there
fore proceed in state court. The District Court did not
decide whether the claims otherwise met the Act’s condi
tions for preclusion.
——————
4 The investors claim that the funds facilitated the practice of “market

timing,” whereby traders of mutual fund shares exploit brief discrepan
cies between the stock prices used to calculate the shares’ value once a
day, and the prices at which those stocks are actually trading in the
interim. Brief for Petitioners 6. The investors say that market timing
is harmful to long-term holders of mutual fund shares and that the
funds negligently or recklessly failed to adopt procedures to protect the
value of the investors’ long-term investments.
5 As discussed in Part III, infra, we have since rejected this reasoning,

see Dabit, supra, at ___ (slip op., at 16).
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Opinion of the Court

The funds filed notices of appeal from the remand or
ders, and in one of the cases, Kircher v. Putnam Funds
Trust, the Seventh Circuit issued an opinion addressing
the threshold question of its appellate jurisdiction. 373
F. 3d 847 (2004). The Court of Appeals acknowledged that
28 U. S. C. §1447(d) bars review of district court orders
remanding for lack of subject matter jurisdiction, 373
F. 3d, at 849 (citing Gravitt v. Southwestern Bell Tele
phone Co., 430 U. S. 723 (1977) (per curiam)), but decided
that the District Court had the last word neither on the
characterization of its decision as jurisdictional nor on the
correctness of its conclusion that remand was required,
see 373 F. 3d, at 849.
The Court of Appeals considered all covered class ac
tions involving covered securities, whether precluded or
not, to be removable under the Act, and for that reason
thought the preclusion issue to be distinct from the juris
dictional issue of whether the case belonged in federal
court at all. Id., at 849–850. In the view of the Court of
Appeals, if the District Court remanded because, for ex
ample, the class comprised too few investors to make the
case a covered class action, that would be a jurisdictional
decision that the case had been removed improperly, and
the order would therefore be unreviewable in accordance
with §1447(d). Id., at 849. But the court held that orders
remanding “properly removed” suits as not precluded by
the Act are substantive, “unaffected by §1447(d),” id., at 851,
and therefore subject to appellate jurisdiction in the normal
course.
As the Court of Appeals put it, once the District Court
had made that substantive decision of no preclusion in
this case, it was time for the court to bow out, not because
it had lacked “adjudicatory competence” to begin with but
because it had completed its work: “Once a court does all
that the statute authorizes, there is no adjudicatory com
petence to do more. That is not the ‘lack of subject-matter
 Cite as: 547 U. S. ____ (2006) 5

Opinion of the Court

jurisdiction’ that authorizes a remand. Otherwise every
federal suit, having been decided on the merits, would be
dismissed ‘for lack of jurisdiction’ because the court’s job
was finished.” Id., at 850. This remand, the court con
cluded, was therefore not for want of jurisdiction, and
review was not barred by §1447(d).
To satisfy itself that its decision made “practical sense,”
the court proposed that the Act reserves to the Federal
Judiciary the exclusive authority to make the preclusion
decision. Ibid. Treating remand orders in this context as
immunized from appeal by §1447(d) would thus mean that
“a major substantive issue in the case [would] escape
review,” since it would not be open to resolution in the
state court subject to review by this Court. Ibid.
The Seventh Circuit subsequently consolidated the
funds’ appeals and decided, on the merits, that the Act
does preclude the investors’ claims. 403 F. 3d 478 (2005).
We granted certiorari to resolve a split of authority on the
question whether §1447(d) bars review of remand orders
in cases removed under the Act,6 546 U. S. ___ (2006), and
we now vacate for want of jurisdiction on the part of the
Court of Appeals.
II
The policy of Congress opposes “interruption of the
litigation of the merits of a removed cause by prolonged
litigation of questions of jurisdiction of the district court to
which the cause is removed,” United States v. Rice, 327
U. S. 742, 751 (1946), and nearly three years of jurisdic
tional advocacy in the cases before us confirm the congres
sional wisdom. For over a century now, statutes have
accordingly limited the power of federal appellate courts to
——————
6 Compare 373 F. 3d 847 (CA7 2004) (case below), with Spielman v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F. 3d 116 (CA2 2003);
Abada v. Charles Schwab & Co., 300 F. 3d 1112 (CA9 2002); Williams
v. AFC Enterprises, Inc., 389 F. 3d 1185 (CA11 2004).
6 KIRCHER v. PUTNAM FUNDS TRUST

Opinion of the Court

review orders remanding cases removed by defendants
from state to federal court, see id., at 748–752; Thermtron
Products, Inc. v. Hermansdorfer, 423 U. S. 336, 346–348
(1976). The current incarnation is 28 U. S. C. §1447(d),
which provides that an “order remanding a case to the
State court from which it was removed is not reviewable
on appeal or otherwise.”7 In Thermtron, we held that the
bar of §1447(d) applies only to remands based on the
grounds specified in §1447(c), that is, a defect in removal
procedure or lack of subject matter jurisdiction. 423 U. S.,
at 343–345; see also Things Remembered, Inc. v. Petrarca,
516 U. S. 124, 127–128 (1995). So, we have approved ap
pellate review of a remand expressly based on the District
Court’s crowded docket, see Thermtron, supra, at 340–341,
and one based on abstention under Burford v. Sun Oil Co.,
319 U. S. 315 (1943), see Quackenbush v. Allstate Ins. Co.,
517 U. S. 706, 710–712 (1996). But we have relentlessly
repeated that “any remand order issued on the grounds
specified in §1447(c) [is immunized from all forms of ap
pellate review], whether or not that order might be
deemed erroneous by an appellate court.” Thermtron, 423
U. S., at 351; see also id., at 343 (“If a trial judge purports
to remand a case on the ground that it was removed ‘im
providently and without jurisdiction,’ his order is not
subject to challenge in the court of appeals” (quoting
§1447(c) (1976 ed.))).
The bar of §1447(d) applies equally to cases removed
under the general removal statute, §1441, and to those
removed under other provisions, see Things Remembered,
Inc., supra, at 128, and the force of the bar is not subject to
any statutory exception that might cover this case.8 Osten
——————
7 Title 28 §1447(d) specifically excepts certain civil rights actions from

its bar; cf. §1443.
8 “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
 Cite as: 547 U. S. ____ (2006) 7

Opinion of the Court

sibly, then, §1447(d) stands in the way of reviewing the
District Court’s orders of remand in the present cases. The
District Court said that it was remanding for lack of juris
diction, an unreviewable ground, and even if it is permissi
ble to look beyond the court’s own label, the orders are
unmistakably premised on the view that removal jurisdic
tion under 15 U. S. C. §77p(c) is limited to cases precluded
by §77p(b); on the District Court’s understanding that
“holder” claims are not subject to preclusion under §77p(b)
of the Act, the court had no subject matter jurisdiction.9
Since there was no indication that removal jurisdiction
might exist on some ground other than §77p(c) (complete
diversity, for example),10 the remand orders were necessar
ily based on the trial court’s conclusion that jurisdiction
under §77p(c) was wanting. And “[w]here the order is
based on one of the [grounds enumerated in 28 U. S. C.
§1447(c)], review is unavailable no matter how plain the
legal error in ordering the remand,” Briscoe v. Bell, 432

——————
for removal,” Things Remembered, 516 U. S., at 128 (internal quotation
marks omitted), like 15 U. S. C. §77p(c). Congress has, when it wished,
expressly made 28 U. S. C. §1447(d) inapplicable to particular remand
orders. See, e.g., §1447(d); 12 U. S. C. §1441a(l)(3)(C); §1819(b)(2)(C);
25 U. S. C. §487(d); cf. n. 6, supra. There is no such “clear statutory
command” here, and that silence tells us we must look to 28 U. S. C.
§1447(d) to determine the reviewability of remand orders under the
Act.
9 We take a pass on Justice Scalia’s position that we may not look

beyond the label, see post, at 3; the result here is the same whether we
look near or far.
10 These cases raise exclusively state-law claims seeking damages

insufficient to satisfy the amount-in-controversy requirement of 28
U. S. C. §1332; in those instances in which the funds asserted diversity
as a basis for subject matter jurisdiction, the District Court determined
that no named plaintiff had a claim that met §1332’s $75,000 threshold.
See, e.g., Parthasarthy v. T. Rowe Price International Funds, Inc., No.
03–CV–0673–DRH (SD Ill., Jan. 30, 2004), App. to Pet. for Cert. 34a–
37a; Spurgeon v. Pacific Life Ins. Co., No. 04–CV–0355–MJR (SD Ill.,
June 24, 2004), App. to Pet. for Cert. 59a–60a.
8 KIRCHER v. PUTNAM FUNDS TRUST

Opinion of the Court

U. S. 404, 413 –414, n.13 (1977).
The Court of Appeals did not, of course, overlook the
cases holding that even a remand premised on an errone
ous conclusion of no jurisdiction is unappealable; it relied
instead on cases like Kontrick v. Ryan, 540 U. S. 443
(2004), and Scarborough v. Principi, 541 U. S. 401 (2004),
which observed that some rulings loosely called jurisdic
tional are patently not jurisdictional in the strict sense,
see 373 F. 3d, at 849 (citing Kontrick, supra; Scarborough,
supra). The appeals court saw this as such a case; it
understood that a district court had removal jurisdiction
over any covered action under subsection (c), with the
consequence that a subsequent order dismissing because
of preclusion under subsection (b), or remanding because
the action was not precluded, rested simply on an applica
tion of substantive law under subsection (b), law that was
not jurisdictional at all.
We think, however, that the District Court was correct
in understanding its remand order to be dictated by its
finding that it lacked removal jurisdiction. Unlike the
Court of Appeals, we read authorization for the removal in
subsection (c), on which the District Court’s jurisdiction
depends, as confined to cases “set forth in subsection (b),”
§77p(c), namely, those with claims of untruth, manipula
tion, and so on. The quoted phrase immediately follows
the subsection (c) language describing removable cases as
covered class actions involving covered securities, and the
language has no apparent function unless it limits re
moval to covered class actions involving claims like un
truth or deception. And legislative history tends to show
that this was just what Congress understood. See S. Rep.
No. 105–182, p. 8 (1998) (§77p(c) “provides that any class
action described in Subsection (b) that is brought in a
State court shall be removable to Federal district court,
and may be dismissed pursuant to the provisions of sub
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Opinion of the Court

section (b)”); H. R. Rep. No. 105–640, p. 16 (1998) (same).11
The funds argue that removal jurisdiction is broader by
emphasizing the adjective that introduces subsection (c):
“Any” covered action. §77p(c). But that suggestion would
be persuasive only if we stopped reading right there, and
we do not stop there; we do not read statutes in little bites.
And, as just noted, if we did read the removal power that
broadly there would be no point to the phrase “as set forth
in subsection (b),” for subsection (b) cases would be remov
able anyway as a subset of covered class actions. Ibid.
The funds purport to counter this objection with their
argument that on our reading the last phrase of subsec
tion (c) is redundant in providing that removed cases
“shall be subject to subsection (b),” since subsection (b)
cases would in any event be so subject. Ibid. The funds
are in fact right about that redundancy, but the point does
not count for their side, because the phrase is redundant
on their reading, too: any subsection (b) case removed as
falling within the broad category of covered class actions
would be treated in accordance with subsection (b) if the
subsection applied to that case. In sum, we see no reason
to reject the straightforward reading: removal and juris
diction to deal with removed cases is limited to those
precluded by the terms of subsection (b).
Once removal jurisdiction under subsection (c) is under
stood to be restricted to precluded actions defined by
subsection (b), a motion to remand claiming the action is
not precluded must be seen as posing a jurisdictional
issue. If the action is precluded, neither the District Court
nor the state court may entertain it, and the proper course
——————
11 Like the Court of Appeals here, we said in Dabit that a “key provi

sion of the [Act] makes all ‘covered class actions’ filed in state court
removable.” 547 U. S, at ___, n. 7 (slip op., at 10, n. 7) (quoting 112 Stat.
3230). We sketched the removal provision in broad strokes then because
the question of its scope was not before us. Now that it is, we speak more
cautiously.
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Opinion of the Court

is to dismiss. If the action is not precluded, the federal
court likewise has no jurisdiction to touch the case on the
merits, and the proper course is to remand to the state
court that can deal with it. In either event, as the Court of
Appeals said, the district court’s order comes because its
adjudicatory power has been exercised and its work is
done. But its adjudicatory power is simply its authority to
determine its own jurisdiction to deal further with the
case, see United States v. Shipp, 203 U. S. 563, 573 (1906)
(opinion for the Court by Holmes, J.) (A federal court
“necessarily ha[s] jurisdiction to decide whether the case
[is] properly before it”). The work done is jurisdictional,12
——————
12 The funds argue 15 U. S. C. §77p confers jurisdiction greater than
that necessary to render the preclusion decision, analogizing §77p(c) to
the federal officer removal statute, 28 U. S. C. §1442(a). If there is any
colorable claim that an action is precluded, the argument goes, the
district court can keep the case for adjudication, even after concluding
on the merits that the state-law claims are not precluded; but because
it has discretion to keep the case or remand to state court, a remand is
not jurisdictional and hence is reviewable. The argument is flawed for
two reasons. The District Court here did not indicate it thought there
was any basis to keep the case for further development; right or wrong,
it understood that it was making a jurisdictional ruling. Nor is the
analogy with federal officer cases sound.
Section 1442(a) is an exception to the “well-pleaded complaint” rule,
under which (absent diversity) “a defendant may not remove a case to
federal court unless the plaintiff’s complaint establishes that the case
‘arises under’ federal law.” Franchise Tax Bd. of Cal. v. Construction
Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 10 (1983) (empha
sis deleted). The federal officer removal statute allows “suits against
federal officers [to] be removed despite the nonfederal cast of the com
plaint,” Jefferson County v. Acker, 527 U. S. 423, 431 (1999), and reflects a
congressional policy that “federal officers, and indeed the Federal Gov
ernment itself, require the protection of a federal forum,” Willingham v.
Morgan, 395 U. S. 402, 407 (1969). An officer’s federal defense need be
only colorable to assure the federal court that it has jurisdiction to adjudi
cate the case, see Acker, supra, at 431.
The funds assert that a preclusion defense need be only colorable as
well, but the Act is different. It avails a defendant of a federal forum in
contemplation not of further litigation over the merits of a claim brought
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Opinion of the Court

as is the conclusion reached and the order implementing
it.13
——————
in state court, but of termination of the proceedings altogether, and a
merely colorable claim of preclusion does not satisfy a district court that it
may dismiss a case as precluded by the Act. There is no room for such a
case to exist in a limbo of colorable preclusion; if a claim is precluded, it
“may [not] be maintained,” 15 U. S. C. §77p(b), and if the claim is not, the
federal courts no longer have any business being involved, as there is no
longer any federal question on which to moor the district court’s jurisdic
tion. Nor has Congress expressed in the Act, as it did with 28 U. S. C.
§1442(a), any policy of having particular suits tried in a federal court;
there is no indication whatsoever in the Act that, apart from its purpose to
preclude certain vexing state-law class actions, Congress intended to add
other state-law cases to the federal dockets, and there is no apparent
federal interest in spending time on such cases akin to the interest in
adjudicating suits against federal officers.
13 The funds suggest, in the alternative, that appellate jurisdiction in

this case was proper under Waco v. United States Fidelity & Guaranty
Co., 293 U. S. 140 (1934). Without passing on the continued vitality of
that case in light of §1447(d), we note that on its own terms it is distin
guishable.
In Waco, a case was removed to federal court on an invocation of
diversity jurisdiction, id., at 141, and the District Court thereafter
“entered a single decree embodying . . . separate orders.” Id., at 142. In
one order, the District Court dismissed a cross-complaint against one
party. In another, the District Court concluded that because of the
dismissal there was no diversity of citizenship and it thus lacked
jurisdiction, and so it remanded the case to state court. An appeal was
taken from the order of dismissal. This Court determined that the
appeal would lie, because “the decree of dismissal preceded that of
remand,” and because the District Court’s order of dismissal was
conclusive upon the parties. Id., at 143. We noted that a “reversal [of
the dismissal] cannot affect the order of remand, but it will at least, if
the dismissal . . . was erroneous, remit the entire controversy, with the
[previously dismissed party] still a party, to the state court for . . .
further proceedings.” Id., at 143–144.
The order appealed in Waco was not a remand order; the order here
is, and thus falls within §1447(d)’s bar on appeals of “[a]n order re
manding a case” to state court. Moreover, the funds do not explain how
to reconcile their argument with Waco’s acknowledgement that the
order of remand “cannot [be] affect[ed]” notwithstanding any reversal of
a separate order, id., at 143. The District Court’s remand order here
12 KIRCHER v. PUTNAM FUNDS TRUST

Opinion of the Court

III

We have yet to deal with one objection to our application
of §1447(d), which if well-taken would be a serious one.
The Seventh Circuit’s reading of subsection (c) so as to
treat the application of the preclusion rule as non-
jurisdictional was in part motivated by its assumption
that the Act gives federal courts exclusive jurisdiction to
decide the preclusion issue. If that is so, and §1447(d)
applies, a remand order based on a finding that an action
is not precluded would arguably be immune from review.
This is what the funds in effect contend here when they
say that a district court’s finding of no subsection (b)
preclusion would collaterally estop the state court on
remand; the district court would have the last word. And
of course the funds’ discomfort is made acute by our recent
decision in Dabit, which expressly disavows the dis-
trict court’s limited view of the scope of subsection (b)
preclusion.
But a district court does not have the last word on pre
clusion under the Act, for nothing in the Act gives the
federal courts exclusive jurisdiction over preclusion deci
sions. A covered action is removable if it is precluded, and
a defendant can enlist the Federal Judiciary to decide
preclusion, but a defendant can elect to leave a case where
the plaintiff filed it and trust the state court (an equally
competent body, see Missouri Pacific R. Co. v. Fitzgerald,
160 U. S. 556, 583 (1896)) to make the preclusion determi
nation.
And what a state court could do in the first place it may
also do on remand; in this case, the funds can presently
argue the significance of Dabit and ask for dismissal on
grounds of preclusion when they return to the state court.
——————

cannot be disaggregated as the Waco orders could, and if the Seventh

Circuit’s preclusion decision stands, there is nothing to remand to state

court.

 Cite as: 547 U. S. ____ (2006) 13

Opinion of the Court

Collateral estoppel should be no bar to such a revisitation
of the preclusion issue,14 given that §1447(d) prevents the
funds from appealing the District Court’s decision. See
Standefer v. United States, 447 U. S. 10, 23 (1980)
(“[C]ontemporary principles of collateral estoppel . . .
strongly militat[e] against giving an [unreviewable judg
ment] preclusive effect” (citing Restatement (Second) of
Judgments §68.1 (Tent. Draft No. 3, 1976)); see also Re
statement (Second) of Judgments §28(1) (1980) (“Although
an issue is actually litigated and determined by a valid
and final judgment, and the determination is essential to
the judgment, relitigation of the issue in a subsequent
action between the parties is not precluded [when t]he
party against whom preclusion is sought could not, as a
matter of law, have obtained review of the judgment in the
initial action”). While the state court cannot review the
decision to remand in an appellate way, it is perfectly free
to reject the remanding court’s reasoning, as we explained
over a century ago in Missouri Pacific Railway: “[A]s to
applications for removal on the ground that the cause
arose under the Constitution, laws, or treaties of the
United States,” the finality accorded remand orders is
appropriate because questions of this character “if decided
against the claimant” in state court are “open to revision
. . ., irrespective of the ruling of the [federal court] in that
regard in the matter of removal.” 160 U. S., at 583. Nor is
there any reason to see things differently just because the
remand’s basis coincides entirely with the merits of the
federal question; it is only the forum designation that is
conclusive. Here, we have no reason to doubt that the
state court will duly apply Dabit’s holding that holder

——————
14 Modern usage calls for the descriptive term, “issue preclusion,” in
place of “collateral estoppel.” But we are backsliders out of pity for the
tired reader; “preclusion” by statutory fiat is enough preclusion for one
opinion.
14 KIRCHER v. PUTNAM FUNDS TRUST

Opinion of the Court

claims are embraced by subsection (b),15 but any claim of
error on that point can be considered on review by this
Court. See Franchise Tax Bd. of Cal. v. Construction La
borers Vacation Trust for Southern Cal., 463 U. S. 1, 12, n.
12 (1983) (“If the state courts reject a claim of federal pre
emption, that decision may ultimately be reviewed on
appeal by this Court” (citing Fidelity Fed. Sav. & Loan
Assn. v. De la Cuesta, 458 U. S. 141 (1982))).
IV
We hold that the Act does not exempt remand orders
from 28 U. S. C. §1447(d) and its general rule of nonap
pealability. We therefore vacate the judgment of the
Court of Appeals and remand the case with instructions to
dismiss the appeal for lack of jurisdiction.

It is so ordered.

——————
15 The parties further dispute whether the investors’ claims satisfy the

other 15 U. S. C. §77p(b) preclusion prerequisites, particularly the allega
tion of fraud; the investors take issue with the Seventh Circuit’s charac
terization of their claims as charging fraud or manipulation, not mis
management. Because the Court of Appeals lacked appellate
jurisdiction, its reading of the investors’ litigation position is not
binding in future proceedings and is open to consideration on remand.
 Cite as: 547 U. S. ____ (2006) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–409
_________________

CARL KIRCHER, ET AL., PETITIONERS v. PUTNAM

FUNDS TRUST ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 15, 2006]

JUSTICE SCALIA, concurring in part and concurring in
the judgment.
I join the judgment of the Court, and Parts I, III, and IV
of the Court’s opinion; I do not join Part II for the reasons
set forth below.
The District Court ordered these cases remanded to
state court for want of jurisdiction. We know this because
the orders say so: “Because the Court lacks subject matter
jurisdiction, the Court REMANDS this action to the
Madison County, Illinois Circuit Court.” App. to Pet. for
Cert. 27a; see also id., at 30a, 40a, 46a, 51a, 57a, 64a.
Even if those decisions were incorrect, the Court of Ap
peals lacked jurisdiction to review them because 28
U. S. C. §1447(d) bars appellate review of remand orders
based on lack of subject-matter jurisdiction. See, e.g.,
Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127–
128 (1995). The Court correctly concludes that the Sev
enth Circuit’s review of the remand orders overstepped its
appellate authority. I disagree with the Court’s reasoning
in Part II, however, because it holds only that the Court of
Appeals’ recharacterization was incorrect, and not (as I
believe) that recharacterization—being a form of review—
is categorically forbidden.
The Court of Appeals rejected the District Court’s de
scription of its orders because it believed the District
2 KIRCHER v. PUTNAM FUNDS TRUST

Opinion of SCALIA, J.

Court had been too loose in its use of the term “jurisdic
tion.” 373 F. 3d 847, 849–850 (2004). What the District
Court actually did, the Court of Appeals concluded, was to
remand on nonjurisdictional grounds (not subject to the
appellate-review bar of §1447(d)) after deciding that peti
tioners’ suits were not precluded. Such recharacterization
seems to me flatly inconsistent with §1447(d). Under that
section, an “order remanding a case to the State court
from which it was removed is not reviewable on appeal or
otherwise.” Ibid. (emphasis added). But appellate review
is exactly what is involved in looking behind the face of an
order to determine its true basis: In order to reject a dis
trict court’s own characterization, a court of appeals must
decide, as the Seventh Circuit did here, that the district
court was wrong. We have therefore held, in language
that makes plain the correct outcome here, that “[i]f a trial
judge purports to remand a case on the ground that it was
removed ‘improvidently and without jurisdiction,’ his
order is not subject to challenge in the court of appeal, by
mandamus, or otherwise.” Thermtron Products, Inc. v.
Hermansdorfer, 423 U. S. 336, 343 (1976) (quoting §1447(c)
(1970 ed.); emphasis added). Whether the District Court
was right or wrong—even if it was so badly mistaken that
it misunderstood the true basis for its orders—it purported
to remand for lack of jurisdiction, and §1447(d) bars any
further review.*
Review of the sort engaged in by the Court of Appeals
threatens to defeat the purpose of §1447(d). As we recog
nized in Thermtron Products, the appellate-review bar was
enacted “to prevent delay in the trial of remanded cases by
——————
* To say that we cannot recharacterize the District Court’s remand for
lack of jurisdiction is not to say that the basis for the remand is forever
insulated from review. Part III of the Court’s opinion makes clear that
the underlying legal issue of preclusion remains open in state court,
and need not be resolved in accordance with the (unreviewable) views of
the District Court.
 Cite as: 547 U. S. ____ (2006) 3

Opinion of SCALIA, J.

protracted litigation of jurisdictional issues.” Id., at 351.
Such delay can be created just as easily by asking whether
the district court correctly characterized the basis for its
order as it can by asking whether that basis was correct—
which even the Court of Appeals recognized was beyond
its jurisdiction, 373 F. 3d, at 849. See also Thermtron
Products, supra, at 343 (noting that §1447(d) “prohibits
review of all remand orders [based on lack of subject-
matter jurisdiction] whether erroneous or not”). The
remand orders in these cases date back to early 2004; over
two years later, federal courts are still engaged in appel
late review.
The Court should end this delay by holding that appel
late courts cannot look behind the stated basis for the
district court’s remand order. Instead, it concludes that
“the District Court was correct in understanding its re
mand order to be dictated by a finding that it lacked re
moval jurisdiction.” Ante, at 8 (emphasis added). It seems
to me no more within our authority to declare the District
Court’s views correct than it was within the Court of
Appeals’ authority to reject them. Either decision is an
exercise of appellate review barred by the plain terms of
§1447(d).