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Interlocutory Review of Orders Denying Remand Motions

47 Pages Posted: 31 Aug 2011 Last revised: 26 Jan 2012

Rory M. Ryan

Baylor University - Law School

Luke Meier

Baylor University - Law School

William Jeremy Counseller

Baylor University - Law School

Date Written: August 31, 2011

Abstract

When can an appellate court review a district court’s denial of a remand motion before a final judgment? Surprisingly little has been written on this topic, especially compared to how much has been written on the review of a district court’s grant of a remand motion. But recent developments in the Fifth Circuit, including a case in which we participated as amicus, provide a fine case study for addressing these questions. Our goal here is to guide judges and lawyers in answering the opening question. Our short answer is that a remand denial is not inherently different than the typical interlocutory ruling, and therefore a party must follow the ordinary appellate methods prescribed by Congress: either await final judgment or obtain certification under 28 U.S.C. § 1292(b). Mandamus review is generally unavailable because the petitioner has an adequate remedy by appeal. Neither the time, hassle and expense of enduring trial, nor the possibility that the appeal might ultimately prove unsuccessful, render the appellate remedy inadequate.

Keywords: remand, mandamus, removal, final judgment, adequate remedy, appeal, Rory Ryan, Luke Meier, Jeremy Counseller

Suggested Citation

Ryan, Rory M. and Meier, Luke and Counseller, William Jeremy, Interlocutory Review of Orders Denying Remand Motions (August 31, 2011). Baylor Law Review, Vol. 63, No. 3, 2011. Available at SSRN: https://ssrn.com/abstract=1920504 or http://dx.doi.org/10.2139/ssrn.1920504

Rory M. Ryan

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

Luke Meier (Contact Author)

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

William Jeremy Counseller

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

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