September 9, 2011
Ryan, Meier, and Counseller on Appellate Review of Orders Denying Remand
Professors Rory Ryan, Luke Meier, and William Counseller (Baylor) have posted on SSRN a draft of their article, Interlocutory Review of Orders Denying Remand Motions. Here’s the 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.