Academic journal article Missouri Law Review

Remands by Deception

Academic journal article Missouri Law Review

Remands by Deception

Article excerpt


"[R]ecurring, decades-old, hand-to-hand combat." (1) That is how one circuit judge described removal-and-remand litigation fights in federal court.

It is a characterization apt in both fact and metaphor. In point of fact, the fights that mark removal-and-remand litigation contests are often pitched ones: frequently intense, expensive, and prolonged. (2) They have been that way for many years. (3) Faithful to the military metaphor, these fights can be indisputably decisive and terribly wasteful. They are contests to decide the place of battle, and as military strategists have conspired for millennia, choosing wisely the place of battle can often foretell the outcome of the fight. (4) On the other hand, they have the potential, like all combat engagements, to languish on interminably for months (or years) (5) with little claimed ground to show as a prize. (6) From either perspective, this much is certain: removal-and-remand litigation is usually only the precursor to the merits, not the main event. The substantive merits fight will still lie waiting a resolution either in a courtroom or over a negotiating table.

Because removal-and-remand litigation nearly always postpones the ultimate resolution of the underlying merits dispute, Congress long worried over the mischief this costly, delaying, collateral litigation could wreak on both the federal and state judicial systems (and on federalism more generally). (7) To contain that mischief, Congress devised a mechanism to bring a swift and decisive close to such satellite litigation: it invested the federal trial judges with generally unreviewable autonomy in making remand decisions. Under Congress's approach, the federal trial judges' decisions on remand were to be made by them, and by them only once; and then once made, those decisions were to be final--as to both the deciding judges who issued them and to all appellate tribunals thereafter. (8) This plan, Congress devised, would at least eliminate the specter of collateral appellate litigation over remand decisions grinding on interminably. (9) The Judiciary Code announces this plan crisply--remand orders are "not reviewable on appeal or otherwise," (10) except in very few, narrow exceptions. (11) Such has been "the established rule ... stretching back to 1887," when Congress first installed this no-review directive. (12) By 1946, the conclusiveness of this directive was so well settled that the U.S. Supreme Court declared it "no longer open to doubt." (13)

But what if the trial judge's decision to grant the remand was premised on a lie? Not a non-partisan lie, mind you, but a litigant's lie. And not some grey-area, stretching-of-the-truth, overly aggressive, leaping misstep in advocacy, but a genuine fabrication. A bald, bold-faced falsehood, calculated deliberately to deceive the federal judge into a factual conclusion that the litigant invented intentionally to spur the court into signing a remand order.

What then?

Congress directs that there be no remand reviews; indeed, Congress "unmistakably commands" it. (14) Does that proscription apply to deceptively-induced remand orders? Or may a hoodwinked judiciary rescind its fraudulently produced (and otherwise "unreviewable") remand and deny the miscreants their state-forum booty?

This Article explores that conundrum. Part I introduces the preliminaries of removal, remand, and Congress's no-review directive, supplying an orientation to the background of these concepts, their purpose, and their operation. Part II discusses the only appellate resolution to have ever squarely confronted this question, the Fourth Circuit's opinions in Barlow v. Colgate Palmolive Co. (15) Part III conducts the statutory analysis to evaluate whether Congress has indeed enacted a statute that actually forestalls the federal judiciary's ability to protect itself against fraud in the remand process. After exploring the nuances of the statute's language, the guide of "ordinary meaning," and the lessons of congressional intent, this Article concludes that, notwithstanding the seemingly absolutist, prohibitory language of Congress's no-review statute, deceptively-induced remands can be vacated by the courts. …

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