Remands by Deception

Abstract

Since 1887, the “review” of federal remand orders – rulings that return a removed case back to the State court from which it originated – has been largely forbidden. The statute Congress wrote to achieve this result is seemingly unforgiving (“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise …”). Congress’s goal in imposing this prohibition was to lessen the delay caused by removal/remand fights, to install a single decision maker (the federal trial judge) for remand orders, and then to let that judge decide, right or wrong. But what if that single judge got hoodwinked? If the remand order is the product of a deliberate, calculated effort by officers of the court to deceive the tribunal into ordering a remand, does the absolutist language chosen by Congress convert the deception into the “perfect crime,” with Congress’s statute the best getaway ride ever? This Article begins by orienting the reader to removal, remand, and Congress’s “no-review” statute generally. The Article then discusses the only federal appellate decision to have ever squarely addressed the question of deceptively-induced remands – a recent and divided en banc opinion from the Fourth Circuit. The Article next turns to analyzing the question of deceptively-induced remand orders by conducting a comprehensive statutory construction of the no-review statute and its applicability to hoodwinked remands. Ultimately, the Article concludes that Congress forbade only “reviews” of remand orders, not vacaturs that simply cancel those rulings (without any substantive evaluation of merits) to protect the integrity of the federal courts and the proper working of the judicial process.

Keywords: removal; remand