Case: 23-20337      Document: 106-1         Page: 1   Date Filed: 07/25/2024




        United States Court of Appeals
             for the Fifth Circuit                          United States Court of Appeals
                                                                     Fifth Circuit
                             ____________                          FILED
                                                               July 25, 2024
                               No. 23-20337
                                                              Lyle W. Cayce
                             ____________                          Clerk

Abraham Watkins Nichols Agosto Aziz & Stogner,

                                                         Plaintiff—Appellee,

                                   versus

Edward Festeryga,

                                        Defendant—Appellant.
               ______________________________

               Appeal from the United States District Court
                   for the Southern District of Texas
                        USDC No. 4:22-CV-4249
               ______________________________

Before Dennis, Willett, and Duncan, Circuit Judges.
Don Willett, Circuit Judge:
       This is an appeal from a waiver-based remand order. Edward
Festeryga, an attorney embroiled in a dispute with his former law firm, wants
this case heard in federal court and contends we have appellate jurisdiction
over the district court’s remand order because waiver is neither an issue of
subject-matter jurisdiction nor a defect in removal procedure under 

(c). We agree, but our 40-plus-year-old precedent provides
otherwise, holding that a waiver-based remand order is jurisdictional under
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                                         No. 23-20337


§ 1447(c) and thus unappealable under § 1447(d). 1 Abiding by our rule of
orderliness, we must dismiss for lack of appellate jurisdiction.
                                               I
        The underlying dispute in this case is between the law firm Abraham
Watkins Nichols Agosto Aziz & Stogner and one of its former associates,
Edward Festeryga. Abraham Watkins terminated Festeryga’s employment
after learning that Festeryga attempted to take clients and firm files with him
to a new firm. Festeryga mostly denies the allegations, but whatever their
veracity, Abraham Watkins eventually sued Festeryga in Texas state court
for conversion, breach of fiduciary duty, and tortious interference with
contract.
        The ensuing state-court proceedings spanned 17 days. After Abraham
Watkins obtained a temporary restraining order prohibiting Festeryga from
spoliating evidence, representing firm clients, and disclosing client
information, Festeryga moved to dismiss the suit under Texas’s anti-SLAPP
statute, the Texas Citizens Participation Act (TCPA). 2 Festeryga’s TCPA
motion had the effect of staying the expedited discovery that Abraham
Watkins sought, 3 but the parties were able to agree on a protective order
following an off-the-record hearing. In what Festeryga describes as an effort
to “deescalate” the litigation, he specifically agreed to produce certain
documents within several days after signing the protective order.
        The day before the documents were due, however, Festeryga filed a
notice of removal in the United States District Court for the Southern


        1
            In re Weaver, 

 (5th Cir. 1980).
        2
            Tex. Civ. Prac. & Rem. Code § 27.001 et seq.
        3
           Id. § 27.003(c) (“[O]n the filing of a motion under this section, all discovery in
the legal action is suspended until the court has ruled on the motion to dismiss.”).




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                                         No. 23-20337


District of Texas, attesting that he was a citizen of Canada and that the
district court could accordingly exercise original jurisdiction over the diverse
parties. 4 Abraham Watkins moved to remand, arguing that (1) Festeryga did
not carry his burden in showing diversity of citizenship, and, in any event,
(2) Festeryga waived his right to remove by agreeing to a protective order and
filing a motion to dismiss in state court. The district court took no position
on the first point but agreed on the second. Festeryga’s filing of the TCPA
motion to dismiss, the district court concluded, demonstrated an intent to
“invok[e] the jurisdiction of the state court.” 5 The district court accordingly
granted Abraham Watkins’s motion to remand.
        Festeryga now appeals, and we must determine at the outset whether
we have appellate jurisdiction. As explained below, we do not.
                                               II
        “For the most part,” a unanimous Supreme Court observed a couple
of months ago, “a remand order is not appealable.” 6 Indeed, subject to some
narrow exceptions not relevant here, 

(d) provides an
ostensibly categorical bar to reviewing remand orders on appeal: “An order
remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise.”
        Section 1447(d), however, has not been construed as categorically as
its plain language suggests. The Supreme Court has instead read §§ 1447(c)


        4
          See 

(a) (providing that a defendant may remove any civil action
in which “the district courts of the United States have original jurisdiction”); see also 

§ 1332(a)(2) (providing original federal jurisdiction over civil actions in which “the matter
in controversy exceeds the sum or value of $75,000 . . . and is between citizens of a State
and citizens or subjects of a foreign state”).
        5
            Johnson v. Heublein, Inc., 

 (5th Cir. 2000).
        6
            Harrow v. Dep’t of Def., 

, 487 (2024).




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                                          No. 23-20337


and 1447(d) in pari materia and limited the reach of § 1447(d)’s appellate bar
to only those remand orders predicated on the grounds specified in 1447(c)—
namely, lack of subject-matter jurisdiction or a defect in removal procedure. 7
As we put it just a few years ago, § 1447(d) “only prohibits appellate review
of certain types of remand orders: the kind specified in neighboring
subsection 1447(c).” 8 Thus, to the extent a district court remands a case for
lack of subject-matter jurisdiction (e.g., non-diverse parties) or a defect in
removal procedure (e.g., missing the 30-day removal deadline), we cannot
review that order on appeal. 9
        Remand orders predicated on discretionary grounds outside § 1447(c),
on the other hand, are generally reviewable on appeal. 10 The Supreme Court
has held, for example, that an order remanding a case to state court under
Burford abstention is appealable under the collateral-order doctrine. 11 The
Court has held likewise for remand orders in which a district court declines
to exercise supplemental jurisdiction over state-law claims. 12 We have since
followed suit, adhering to the same understanding of our appellate
jurisdiction despite subsequent amendments to § 1447(c). 13



        7
          Thermtron Prods., Inc. v. Hermansdorfer, 

, 345–46 (1976); see also
Things Remembered, Inc. v. Petrarca, 

 (1995) (Ҥ 1447(d) must be read in
pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c)
are immune from review under § 1447(d).”).
        8
             Grace Ranch, LLC v. BP Am. Prod. Co., 

, 310–11 (5th Cir. 2021).
        9
             Schexnayder v. Entergy La., Inc., 

 (5th Cir. 2004).
        10
             See 

 (listing examples of discretionary grounds for removal).
        11
             Quackenbush v. Allstate Ins. Co., 

 (1996).
        12
             Carlsbad Tech., Inc. v. HIF Bio, Inc., 

 (2009).
        13
           See Grace Ranch, 989 F.3d at 312–13 (rejecting the view that “defect” in
§ 1447(c) includes all non-jurisdictional grounds); see also Waters v. Browning-Ferris Indus.,
Inc., 

 (5th Cir. 2001) (“When a district court remands a suit relying on a




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                                         No. 23-20337


        The question before us, then, is whether the district court’s remand
order in this case—again, which was predicated on waiver by state-court
participation—is a specified ground within § 1447(c) and thus barred from
our review under § 1447(d) or a discretionary ground outside § 1447(c) and
thus an appealable collateral order under § 1291.
        Intuition and basic legal principles suggest the latter, but we read our
decision in In re Weaver 14 to say differently. Weaver, a decision that predates
the Fifth Circuit’s split into two separate circuits in 1981, 15 was by all
appearances an ordinary business dispute involving claims of slander, fraud,
breach of contract, and interference with contractual relations. The plaintiff,
a Georgia corporation, filed suit in Georgia state court and successfully
obtained an ex parte temporary injunction against the defendants from selling
seized corporate assets. The defendants, upon hearing of the injunction,
apparently “arranged a telephone conference with a different superior court
judge,” had the injunction vacated, and then removed the case to federal
court. 16 The federal district court, in turn, remanded the case back to state
court, suggesting that remand was proper because the defendants had
participated in the state-court proceedings and thus waived their right to
remove: “If the case was removable at all,” the district court said, “it was
removable prior to the appearance of the [d]efendants in the Superior Court
action.” 17




contractual forum selection clause, that decision is not based on lack of subject matter
jurisdiction and is therefore outside of the statutory prohibition on our appellate review.”).
        14
             

 (5th Cir. 1980).
        15
             See Act of Oct. 14, 1980, Pub L. No. 96–452, 

.
        16
             Weaver, 

.
        17
             

 at 336 n.2.




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                                           No. 23-20337


       Relying on the Supreme Court’s then-recent decision in Thermtron,
the defendants petitioned for mandamus relief, seeking a writ directing the
district court to reinstate the case. 18 Weaver, however, held that we lacked
appellate jurisdiction, reasoning that the remand order was ambiguous and
that “Thermtron was intended to be strictly limited to those cases in which a
district court ha[d] clearly not relied upon § 1447(c) in ordering remand.” 19
The district court had not done so, the court explained, nor had it “state[d]
a non-section 1447(c) ground.” Thus, the court concluded, “mandamus is
unavailable.” 20
       Weaver would have been an unremarkable decision but for the fact that
its reasoning did not stop there. In the final two sentences of the opinion—
the subject of much skepticism and our focus today—the panel seemed to
also say that the district court had correctly understood that waiver affected
its jurisdiction under § 1447(c) and was thus unreviewable under § 1447(d):
    Even though the specific language of § 1447(c) was not used, it
    seems apparent that at the time of the remand order, [the district-
    court judge] believed the case was not removable, leading to the
    logical inference that he felt jurisdiction was lacking. Such a holding
    is within the guidelines of § 1447(c). 21

It would be easy to overlook, if not outright dismiss, this pair of rather vague
concluding sentences. At the same time, however, we also cannot ignore their
direct relevance to the issue before us now: whether waiver is a ground within
the terms of § 1447(c). Weaver seems to say yes, because the district court
made the “logical inference” that “jurisdiction was lacking” in light of the

       18
            See id. at 336.
       19
            Id. at 337 (emphasis added).
       20
            Id.
       21
            Id.




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                                          No. 23-20337


defendants’ participation in state court. And lack of jurisdiction, of course, is
“a holding within the guidelines of § 1447(c).” 22 We thus read Weaver,
reluctantly, to say that a waiver-based remand order is jurisdictional under
§ 1447(c) and thus “immune from review under § 1447(d).” 23
        Notably, our reading of Weaver is not unique. The Tenth Circuit, for
example, has described the decision just as we have and understandably
rejected its reasoning, noting that it could “fathom no explanation” for why
Weaver thought waiver was jurisdictional under § 1447(c). 24 The Seventh
Circuit, for its part, spared no criticism of Weaver, calling its reasoning in this
respect “unsound,” “illogical,” and “unpersuasive.” 25 This is not to say,
however, that Weaver has been universally rejected. A dissenting judge in the
Seventh Circuit—who cited Weaver for the proposition that appellate courts
cannot review on appeal a “district judge’s order remanding a case to state
court on account of waiver implied from the course of litigation”—would
have followed it. 26 And the Ninth Circuit has in fact done so, citing it
favorably for the same proposition but offering no independent reasoning as
to why it was worth following. 27
        Thus, our reading of Weaver today affirms that there is indeed a 2–2
circuit split on the question whether waiver-based remand orders are
reviewable on appeal. Yet this affirmance comes with reluctance. Based on
our review of the parties’ briefing and our sister circuits’ reasoning, we are

        22
             

        23
             Petrarca, 

.
        24
             City of Albuquerque v. Soto Enters., Inc., 

 (10th Cir. 2017).
        25
             Rothner v. City of Chicago, 

 (7th Cir. 1989).
        26
             

 (Easterbrook, J., dissenting).
        27
          See Schmitt v. Ins. Co. of N.A., 

 (9th Cir. 1988); see also
Kunzi v. Pan Am. World Airways, Inc., 

, 1294 n.7 (9th Cir. 1987).




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                                         No. 23-20337


persuaded that Weaver rests on erroneous premises. Waiver is a common-law
creation and, as a doctrine principally concerned with a party’s conduct,
cannot affect our subject-matter jurisdiction. 28 Waiver also lacks other
hallmarks of a jurisdictional doctrine: it need not be raised sua sponte, 29 it can
be waived, 30 and its finding is reviewed for abuse of discretion. 31 Waiver,
moreover, is a “second-order prudential device,” 32 not a doctrine compelled
by Article III of the Constitution or by any statute from Congress—the only
two sources of our jurisdiction. 33 We could go on, but the fact that we think
Weaver misunderstood the niceties of waiver, jurisdiction, 34 and their
relation to § 1447(c) does not give us license to decide this case according to


        28
           See Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 

(1982) (“[N]o action of the parties can confer subject-matter jurisdiction upon a federal
court.”); see also Kontick v. Ryan, 

 (2004) (“Characteristically, a court’s
subject-matter jurisdiction cannot be expanded to account for the parties’ litigation
conduct[.]”); Buchner v. F.D.I.C., 

 (5th Cir. 1993) (“[Parties] may neither
confer subject matter jurisdiction on the district court nor strip it of such jurisdiction by
agreement or waiver.”).
        29
             Soto Enters., 

.
        30
             

        31
          See Adair v. Lease Partners, Inc., 

 (5th Cir. 2009) (reviewing
discretionary remands for abuse of discretion).
        32
       Badaiki v. Schlumberger Holdings Corp., 

, 745 (S.D. Tex. 2021)
(Eskridge, J.).
        33
           See Sheldon v. Sill, 

 (1850); see also In re Carter, 

 (5th Cir. 1980) (“The subject matter jurisdiction of federal courts is limited by the
Constitution and Congress, and cannot be expanded by judicial interpretation or by the acts
or consent of the parties to a case.”); Tercero v. Tex. Southmost Coll. Dist., 

 (5th Cir. 2021) (“In determining jurisdiction, federal courts must look to the sources
of their power, Article III of the United States Constitution and congressional statutory
grants of jurisdiction . . . .”).
        34
           We suspect—but only suspect—that Weaver can be partly explained by the fact
that it was the product of a time in which federal courts “used to apply the term
‘jurisdiction’ in a ‘profligate’ manner.” Harrow, 601 U.S. at 489 n.1.




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                                          No. 23-20337


our own lights today. Stare decisis would be an empty Latinism if it meant
that we need only follow rightly decided cases. We would do that anyway. 35
        In his commendable effort to contextualize Weaver, Festeryga points
out that it predates both the Supreme Court’s decision in Quackenbush and
the 1996 amendment to § 1447(c). Those two historical facts are significant,
of course, because our rule of orderliness does not extend to prior decisions
that have been overtaken by “an intervening change in law,” either through
a statutory amendment or a decision by the Supreme Court. 36
        Our review of the history, however, provides no reason to ignore
Weaver and start anew. The statutory grounds for remand were, to be sure,
slightly different when both Thermtron and Weaver were decided in 1976 and
1980, respectively. At the time, § 1447(c) required remand if the case “was
removed improvidently and without jurisdiction.” 37 The statute was then
amended in 1988 and, for the first time, distinguished between defects in
removal procedure and defects in subject-matter jurisdiction. 38 District


        35
            Whatever one may think of Weaver on its own terms, the decision is arguably
more digestible when viewed in light of § 1447(d)’s flat prohibition of appellate review of
remand orders. Multiple justices have called for the reconsideration of Thermtron and a
return to the plain meaning of § 1447(d). E.g., Carlsbad, 556 U.S. at 641–42 (Stevens,
J., concurring); id. at 642–43 (Scalia, J., concurring); id. at 644–45 (Breyer, J.,
concurring). And if that happens, repudiating Weaver and holding that we can review
waiver-based remand orders would have little to no practical significance. Cf. Rothner, 

 (Easterbrook, J., dissenting) (arguing that the text of § 1447(d) supports
Weaver). Even then, however, we could still likely review remand orders through a petition
for writ of mandamus, just as we did in Weaver itself. See James Pfander, Collateral Review
of Remand Orders: Reasserting the Supervisory Role of the Supreme Court, 

, 510 (2010) (observing that the Supreme Court and federal appeals courts can review
remand orders under the All Writs Act).
        36
             United States v. Petras, 

 (5th Cir. 2018).
        37
             Act of June 25, 1948, ch. 646, 

.
        38
         See Act of Nov. 19, 1988, Pub. L. No. 100–702, 

. We recognize that
one relevant revision following the 1988 amendment was exchanging the term




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                                          No. 23-20337


courts could remand for the latter any time before final judgment, whereas
litigants could move for remand based on the former only within thirty days
of the notice of removal being filed. 39 Quackenbush, decided almost a decade
later in 1996, held that abstention was a reviewable ground for remand
outside § 1447(c) and disavowed Thermtron only to the extent it held that
remand orders were not “final,” appealable orders under § 1291. 40 That
same year, several months after Quackenbush, Congress amended § 1447(c)
once more—striking “any defect in removal procedure” and replacing it
with “any defect other than lack of subject matter jurisdiction.” 41 We noted
this change in Grace Ranch but rejected the view that the amendment
impliedly abrogated Quackenbush and immunized all remand orders from
appellate review. 42 We instead adhered to the view, first articulated in
Quackenbush, that discretionary remands outside § 1447(c) are reviewable on
appeal. 43
        From this rather abbreviated historical account of § 1447(c) and the
reviewability of remand orders, we cannot glean any intervening change in
the law that would overtake the reasoning of Weaver. Both now and at the


“jurisdiction” for the more precise phrase “subject-matter jurisdiction.” Compare id., with

, § 1447(e). But we have no reason to think this slight change in language affects
our analysis or how we read Weaver. The language change was, by all indications, stylistic
and non-substantive. Before the amendment, the Supreme Court read “jurisdiction” to
mean subject-matter jurisdiction, just as we do now after the 1988 amendment. See
Thermtron, 

 n.8.
        39
             See Act of June 25, 1948, ch. 646, 

.
        40
           Quackenbush, 

 (“To the extent Thermtron would require us to
ignore the implications of our later holding in Moses H. Cone [Mem. Hosp. v. Mercury Constr.
Corp., 

 (1983)], however, we disavow it.”).
        41
             Act of Oct. 1, 1996, Pub. L. No. 104–219, 

.
        42
             Grace Ranch, 989 F.3d at 311.
        43
             Id. at 312–13.




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                                     No. 23-20337


time Weaver was decided, lack of jurisdiction was an unreviewable ground for
remand in § 1447(c). The distinction made by the 1988 amendment between
defects in removal procedure and defects in subject-matter jurisdiction has
no discernable relevance to the Weaver court’s apparent belief that waiver
was jurisdictional under § 1447(c). 44 And Quackenbush’s partial disavowal of
Thermtron concerned the proper means of appellate review, not any premise
that Weaver relied on for its understanding of § 1447(c). There is, in short,
no basis for us to depart from our rule of orderliness.
                                          III
        We are bound to follow our 1980 decision in Weaver, which we
understand to hold that waiver-based remands are jurisdictional under
§ 1447(c) and thus barred from our review under § 1447(d). We accordingly
DISMISS this appeal for lack of appellate jurisdiction.




        44
          Understandably reluctant to defend Weaver, Abraham Watkins suggested during
oral argument (and for the first time on appeal) that Weaver can be understood as holding
that waiver is a defect in removal procedure under § 1447(c). Of the many problems with
this argument, the most obvious is that “any defect in removal procedure” was not
introduced into § 1447(c) until 1988, eight years after Weaver was decided.




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                                  No. 23-20337


Stuart Kyle Duncan, Circuit Judge, concurring:
       The majority convincingly lays out why our 1980 decision in Weaver
was wrong. Op. at 8–9. Two sister circuits, spanning four decades, have also
thrown shade at Weaver. See City of Albuquerque v. Soto Enters., Inc., 

 (10th Cir. 2017) (declaring “we can fathom no explanation” for
why Weaver equated waiver-by-participation with jurisdiction); Rothner v.
City of Chicago, 

 (7th Cir. 1989) (calling Weaver
“unpersuasive,” “odd,” “illogical,” and “unsound”). Yet the majority
follows Weaver under the rule of orderliness. Op. at 9–11.
       Gritting my teeth, I concur. The removal statutes have shifted over
the years, see 

 at 9–10, but not enough to erase the stubborn fact that Weaver
transformed a remand for waiver-by-participation into a remand for lack of
federal jurisdiction. That is incorrect, as two circuits (and now our panel)
have confirmed. We should be able to review the waiver-based remand here
under settled precedent. See Quackenbush v. Allstate Ins. Co., 

,
711–12 (1996) (“[28 U.S.C.] § 1447(d) must be read in pari materia with
§ 1447(c), so that only remands based on grounds specified in § 1447(c) are
immune from review under § 1447(d).” (quoting Things Remembered, Inc. v.
Petrarca, 

 (1995))). Only Weaver bars the way.
       The proper course is for our en banc Court to unweave Weaver.




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