Monday, November 19, 2007
Parting ways with several other Courts of Appeals, the Federal Circuit recently decided that 28 U.S.C. § 1447(d) bars an appeal from a remand order based on declining supplemental jurisdiction under 28 U.S.C. § 1367(c). The Federal Circuit read the recent Powerex decision as undercutting the persuasive force of the contrary Court of Appeals decisions. After contrasting a § 1367(c) decline with abstention, the court summarized its reasoning:
In short, because every § 1367(c) remand necessarily involves a predicate finding that the claims at issue lack an independent basis of subject matter jurisdiction, a remand based on declining supplemental jurisdiction can be colorably characterized as a remand based on lack of subject matter jurisdiction. Accordingly, a remand based on declining supplemental jurisdiction must be considered within the class of remands described in § 1447(c) and thus barred from appellate review by § 1447(d).
It wouldn't be too surprising for the Supreme Court to take this case, given that it has twice noted the issue's unresolved status and that now a circuit split exists. --RR