Academic journal article Journal of Appellate Practice and Process

Appealing Remand Orders under the Class Action Fairness Act

Academic journal article Journal of Appellate Practice and Process

Appealing Remand Orders under the Class Action Fairness Act

Article excerpt

Defendants generally may not appeal orders that remand cases once removed to federal court. (1) For parties in cases filed as class actions, however, Congress provided in February 2005 a new avenue for appellate review through 28 U.S.C. [section] 1453(c), a provision enacted in the Class Action Fairness Act of 2005. (2) Section 1453(c) provides for discretionary appellate review of any order denying or granting remand of a removed class action to state court. (3)

Though this discretionary appellate review offers some relief to parties in class actions, appeals under [section] 1453(c) present thorny procedural issues arising from imprecise and unclear language in the CAFA, which mostly concerns whether a party seeking to remove a class action to federal court must do so based on [section] 1453 and when the application for appeal must be filed. Thankfully, recent case law deciding the first round of appeals filed under this new provision sheds light on the procedural issues likely to confront litigants and courts of appeals in the near future.

Admittedly, filing deadlines, briefing formats, and other procedural requirements are not the stuff of most appellate lawyers' dreams. But, these matters can keep lawyers up at night, and getting them right is critical to presenting properly any substantive arguments to any appellate court. With that reality in mind, this article reviews the procedure--that is, the "who, what, where, when, and how"--for bringing a [section] 1453(c) appeal and concludes with several guidelines on navigating this statutory appeals process.


Congress limits review of many remand orders through 28 U.S.C. [section] 1447(d), which states that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." (4) In cases involving class actions, however, the CAFA provides a statutory procedure for reviewing such remand orders. Section 1453(a) provides that a "class action" is defined as

   any civil action filed under rule 23 of the Federal Rules of Civil
   Procedure or similar State statute or rule of judicial procedure
   authorizing an action to be brought by 1 or more representative
   persons. (5)

Section 1453(b) provides for removal of a class action regardless of whether a defendant is a citizen of the forum state or whether all defendants consent to removal:

   [a] class action may be removed to a district court of the United
   States in accordance with section 1446 (except that the 1-year
   limitation under section 1446(b) shall not apply), without regard
   to whether any defendant is a citizen of the State in which the
   action is brought, except that such action may be removed by any
   defendant without the consent of all defendants. (6)

And, [section] 1453(c)(1) provides that an order concerning a motion to remand a class action back to the state court from which the case was removed is reviewable:

   Section 1447 shall apply to any removal of a case under this
   section, except that notwithstanding section 1447(d), a court of
   appeals may accept an appeal from an order of a district court
   granting or denying a motion to remand a class action to the State
   court from which it was removed. (7)

This last provision, [section] 1453(c)(1), raises two important interpretive issues as to the kinds of remand orders that are subject to CAFA's discretionary appeals and, thus, are excluded from the general prohibition on appellate review. First, [section] 1453(c)(1) may require parties seeking appellate review to have called upon this section and to have relied on particular jurisdictional statutes when the class action was removed to federal court. And this section may authorize appeals from orders remanding a removed class action sua sponte or as a result of a show cause order and, in either case, not based upon a party's motion to remand. …

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