Defendant's Attorney: Michael Dekleva, William C. Madison and Eliza Stewart
Description: This is the second appeal in this litigation to come before this court. The first
appeal involved claims by the estate of Vera Cummings (the Estate) against Community
Health Systems, Inc. (CHSI) under state law, against the United States under the Federal
Tort Claims Act (FTCA), and against Mountain View Regional Medical Center
(Mountain View) under state law. We disposed of the appeal by (1) entering an order
approving the stipulated dismissal with prejudice of the appeal of the district court’s
dismissal for lack of personal jurisdiction of the claims against CHSI, (2) affirming the
district court’s dismissal of the claims under the FTCA for lack of subject-matter
jurisdiction, and (3) directing the district court to vacate its judgment in favor of
Mountain View and to remand the claims against Mountain View—but not the claims
against CHSI— to state court for lack of subject-matter jurisdiction.
On remand to the district court, however, it went beyond our mandate by vacating
its dismissal of the claims against CHSI and remanding those claims to state court. CHSI
appealed. We reverse the order vacating the dismissal of the claims against CHSI and
remanding those claims to state court. We also reject the Estate’s motion to dismiss this
appeal for lack of jurisdiction.
A. Initial Proceedings
On January 28, 2008, Mountain View admitted Vera Cummings, who complained
of dizziness and confusion. See Estate of Cummings v. United States, 651 F. App’x 822,
824 (10th Cir. 2016) (Estate of Cummings I). After doctors at Mountain View treated her
for about 10 days, she was released to another health-care facility and died four days
later. See id. In January 2011 the Estate filed suit in New Mexico state court against
three physicians, Mountain View, and CHSI. The Estate alleged that negligent care by
Mountain View and the physicians caused Cummings’s death, and that CHSI “controlled
and operated” Mountain View and was “vicariously liable” for the negligence of the
other defendants. Aplt. App. at 37–38.
In January 2012 the United States certified that the physicians were acting in the
scope of their employment with the United States Public Health Service (PHS) and
removed the action to the United States District Court for the District of New Mexico,
with the United States substituted for the physicians as a defendant. See 42 U.S.C.
§ 233(c) (authorizing such removal and substitution).1 After removal and substitution,
1 The statute states in pertinent part:
Upon a certification by the Attorney General that [a] defendant was
acting in the scope of his employment [as a commissioned officer or
employee of the PHS] at the time of the incident out of which the suit arose,
any such civil action or proceeding commenced in a State court shall be
removed . . . to the district court of the United States of the district and
the sole remedy for the conduct of the physicians is under the FTCA. See id. at § 233(a).
In September 2012 the district court dismissed the claims against CHSI for lack of
personal jurisdiction. The court held that exercising jurisdiction over CHSI would violate
its constitutional right to due process because “CHSI is a nonresident holding company
with no minimum contacts with New Mexico . . . .” Aplt. App. at 58. In 2014 the district
court granted Mountain View summary judgment because of the Estate’s failure to
disclose an expert report on an essential element of its claims against Mountain View.
And in February 2015 the court entered final judgment, disposing of the only remaining
claims—those against the government—for lack of subject-matter jurisdiction because
the Estate had not exhausted administrative remedies as required by the FTCA.
B. The First Appeal
The Estate appealed the district court’s judgment in March 2015. Its docketing
statement listed five issues for appeal, including whether the district court had erred by
dismissing CHSI for lack of personal jurisdiction. The next month, this court scheduled a
mediation conference, see 10th Cir. Loc. R. 33.1, which was a partial success. The
parties filed a “Stipulation to Dismiss” stating that “[p]ursuant to discussions held under
Tenth Circuit Rule 33.1 . . . and the agreement of the parties, [the Estate and CHSI]
hereby stipulate that the above appeal be dismissed with prejudice as to [CHSI] only.”
Aplt. App. at 96. This court then entered an order stating that “[u]pon consideration of
division embracing the place wherein it is pending and the proceeding
deemed a tort action brought against the United States . . . .
42 U.S.C. § 233(c); see also id. § 233(a) (source of material concerning PHS).
the stipulation this appeal is dismissed with respect to [CHSI] only.” Id. at 99.
On June 7, 2016, we entered an order and judgment disposing of the remaining
issues on appeal (the First 2016 Order). The caption included the Estate as the plaintiff
and the United States and Mountain View (but not CHSI) as the defendants. We affirmed
the dismissal of the claims against the government for lack of subject-matter jurisdiction,
agreeing that (1) the doctors had been federal actors, (2) the Estate had not exhausted
administrative remedies before suing, and (3) exhaustion is a statutory jurisdictional
requirement under the FTCA. See First 2016 Order at 12. As for the claims against
Mountain View, the Estate had contended that “[s]hould this court affirm the district
court’s dismissal of the case for lack of subject matter jurisdiction, . . . it must extinguish
all rulings in the case and remand the case against Mountain View to New Mexico state
district court.” Aplt.’s Opening Br. at 27, Estate of Cummings I (10th Cir. July 15, 2015).
We agreed. Our opinion concluded with the following dispositional language:
The dismissal of the federal claims is AFFIRMED. The district
court’s rulings on the supplemental claims are VACATED with instructions
to the district court to remand to New Mexico state court.
First 2016 Order at 13 (emphasis added).
Two weeks later, Mountain View asked this court “to clarify and confirm that the
claims against [CHSI] have not been remanded to New Mexico state court.” Aplt. App.
at 105. It asserted that because the Estate voluntarily dismissed with prejudice its appeal
as to CHSI, “the Court lacked jurisdiction under 28 U.S.C. § 1291 to hear an appeal of
the district court’s order dismissing CHSI for lack of personal jurisdiction” and “could
not have remanded the claims against CHSI to state court.” Id. at 107. On June 24 this
court entered an order granting this request by changing the dispositional language to
The dismissal of the federal claims is AFFIRMED. The district
court’s rulings on the supplemental claims against Mountain View are
VACATED with instructions to the district court to remand to New Mexico
Estate of Cummings, 651 F. App’x at 828 (emphasis added). Mandate issued on August
C. District-Court Proceedings on Remand
Complying with the mandate, the district court entered an order on August 31,
2016, stating that “the Clerk of Court shall REMAND [the Estate’s] claims against
[Mountain View]” to New Mexico state court “as directed by the Tenth Circuit Court of
Appeals.” Aplt. App. at 70. But that did not end the district court’s involvement with the
case. More than four months later, on January 19, 2017, Mountain View asked the
district court for a temporary restraining order and a preliminary injunction. It
represented that the Estate was pursuing its claims against CHSI in state court and
requested an injunction barring the Estate from “prosecuting [the remanded case] against
[CHSI]” or “filing further suits or prosecuting further litigation against CHSI in the State
of New Mexico.” Id. at 71. Injunctive relief was allegedly needed “to prevent the Estate
from relitigating the personal jurisdiction issue that [the district court had] already
decided.” Id.; see 28 U.S.C. § 2283 (permitting a federal court to enjoin state-court
proceedings “where necessary in aid of its jurisdiction, or to protect or effectuate its
judgments”); Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 150–51 (1988) (federal
district court could enjoin state court from considering state-law claim whose validity had
already been adjudicated by the federal court); Ute Indian Tribe of the Uintah & Ouray
Reservation v. Utah, 790 F.3d 1000, 1007–09 (10th Cir. 2015) (remanding to district
court with instructions to enjoin state prosecution being pursued contrary to prior federalcourt
decision that certain lands are Indian country).
On January 25, 2017, the district court denied Mountain View’s request,
explaining that it lacked subject-matter jurisdiction to consider the merits of the motion.
It then entered the order that is the subject of this appeal. It sua sponte decided to vacate
its earlier dismissal of the claims against CHSI and remanded those claims to state court.
It said that “[u]nder its inherent jurisdiction” it needed to “attend to a piece of this case”
that had been “left behind and inadvertently overlooked.” Aplt. App. at 135. Because
“[i]t ha[d] been definitively decided that this Court lacks subject matter jurisdiction over
this entire case, including all supplemental state law claims,” the court stated that “in
addition to vacating its ruling on the Mountain View claims, the Court should have also
vacated its rulings on the CHSI claim[s] and remanded them” to state court. Id. at 134.
The order declared that the court’s “prior rulings on the supplemental claims asserted
against CHSI . . . are hereby VACATED,” and it directed the clerk to send the New
Mexico state court a copy of the order. Id. at 136–37. It also entered a judgment stating
that “the Clerk of Court shall REMAND [the Estate’s] claims against Defendant
Mountain View and CHSI.” Id. at 138.
CHSI filed a notice of appeal, challenging both the vacation of the prior dismissal
of the claims against it and the remand of those claims to state court. The Estate has
moved to dismiss the appeal on the ground that 28 U.S.C. § 1447(d) deprives this court of
jurisdiction to review the remand order. We hold that we have jurisdiction and reverse.
Although we should not opine on the merits of an appeal over which we lack
jurisdiction, we think that addressing the merits first (knowing that we will later explain
why we have jurisdiction) will facilitate our later discussion of the jurisdictional issue.
A. The Merits of the District Court’s Decision
The district court’s decision to vacate its personal-jurisdiction dismissal of the
claims against CHSI and to remand the claims to state court makes sense on its face. But
the decision was based on two false assumptions—that the district court had not had
jurisdiction to dismiss CHSI for lack of personal jurisdiction and that the district court
had authority after our remand to reconsider the dismissal.
The first error was to assume that only a court with subject-matter jurisdiction can
address personal jurisdiction. The district court’s decision to reinstate and remand the
CHSI claims rested on this assumption. See Aplt. App. at 134 (court’s lack of subjectmatter
jurisdiction “means that . . . Court should have also vacated its rulings on the
CHSI claim and remanded [the claim] to state court”).
The assumption is contrary to precedent. The Supreme Court and this court have
repeatedly held that a federal court need not address its jurisdiction when it can dismiss
the case on another ground that does not require determining the merits. For example, in
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007), the Court
said that “[a] district court . . . may dispose of an action by a forum non conveniens
dismissal, bypassing questions of subject-matter and personal jurisdiction, when
considerations of convenience, fairness, and judicial economy so warrant.” Id. at 432.
And this court has followed Sinochem in other contexts. See Citizen Ctr. v. Gessler, 770
F.3d 900, 906 (10th Cir. 2014) (addressing mootness before standing, explaining that
“[b]ecause there is no mandatory sequencing of nonmerits issues, we have leeway to
choose among threshold grounds for denying audience to a case on the merits” (brackets
and internal quotation marks omitted)); Valenzuela v. Silversmith, 699 F.3d 1199, 1205
(10th Cir. 2012) (addressing failure to exhaust rather than mootness); see also Gadlin v.
Sybron Int’l Corp., 222 F.3d 797, 799 (10th Cir. 2000) (before Sinochem, stating that
court can address personal jurisdiction before subject-matter jurisdiction).
Indeed, in Ruhrgas A.G. v. Marathon Co., 526 U.S. 574 (1999), the Supreme
Court approved a district court’s decision to address personal jurisdiction before subjectmatter
jurisdiction in a case, like this one, that involved removal. Several companies had
sued Ruhrgas in Texas state court. See id. at 579. Ruhrgas removed the dispute,
asserting various grounds of federal jurisdiction. It then moved for dismissal based on
lack of personal jurisdiction, while the plaintiffs filed a motion to remand back to the
state court, arguing lack of subject-matter jurisdiction. See id. at 579–80. The district
court dismissed the case for lack of personal jurisdiction without addressing subjectmatter
jurisdiction. See id. at 580.
To fully appreciate the Supreme Court’s ruling, it is helpful to review the
thoughtful Fifth Circuit opinion that reversed the district court and was then itself
reversed in turn. Sitting en banc on appeal, a closely divided Fifth Circuit held that, “at
least in removed cases, district courts should decide issues of subject-matter jurisdiction
first,” reaching personal jurisdiction “only if subject-matter jurisdiction is found to exist.”
Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211, 214 (5th Cir. 1998). This holding was
founded on the court’s perception of fundamental differences in theory and effect
between personal jurisdiction and subject-matter jurisdiction. First, “[w]hen a federal
court acts outside its statutory subject-matter jurisdiction, it violates the fundamental
constitutional precept of limited federal powers.” Id. at 216 (internal quotation marks
omitted). Personal jurisdiction, in contrast, “flows not from [Article] III, but from the
Due Process Clause,” and represents “a restriction on the judicial power not as a matter of
sovereignty, but as a matter of individual liberty,” so, unlike the defense of lack of
subject-matter jurisdiction, the defense of lack of personal jurisdiction can be waived or
even estopped. Id. at 217 (internal quotation marks omitted). The second distinction was
related to federalism concerns that can arise when a case has been removed from state
court if the federal court dismisses for lack of personal jurisdiction:
[I]n the removal context, when a federal district court that lacks federal
subject-matter jurisdiction dismisses instead for want of personal
jurisdiction, it impermissibly wrests that decision from the state courts.
This follows from the fact that because, after remand, such a case would
have to remain within the state courts, questions of personal jurisdiction
necessarily would fall within the state courts’ exclusive, residual
jurisdiction. Those courts are entitled to their own, independent—and
absent a controlling Supreme Court decision—even conflicting
interpretation of their state’s long-arm statute and of the minimum contacts
requirements of the federal Due Process Clause.
Id. at 218. But, said the court, those concerns do not arise when the federal court
dismisses for lack of subject-matter jurisdiction:
A federal court’s decision that it lacks subject-matter jurisdiction, by
contrast, returns the case to the state court so that it can adjudicate or
dismiss. That decision does not intrude on the power reserved to the states,
under the Constitution, to provide for the determination of controversies in
Id. at 219 (citation, brackets, and internal quotation marks omitted).
The Supreme Court disagreed. It recognized that “[t]he character of the two
jurisdictional bedrocks unquestionably differs,” but, it said, “[t]hese distinctions do not
mean that subject-matter jurisdiction is ever and always the more ‘fundamental.’”
Ruhrgas, 526 U.S. at 583–84. Indeed, a challenge to personal jurisdiction may rely “on
the constitutional safeguard of due process,” whereas “the impediment to subject-matter
jurisdiction . . . [may] rest on statutory interpretation, not constitutional command.” Id.
at 584 (emphasis added). Nor do federalism concerns result only from personaljurisdiction
dismissals. Although the Court agreed that “[i]f a federal court dismisses a
removed case for want of personal jurisdiction, that determination may preclude the
parties from relitigating the very same personal jurisdiction issue in state court,” it
observed that “[i]ssue preclusion in subsequent state-court litigation . . . may also attend a
federal court’s subject-matter determination.” Id. at 585. The Court concluded that while
“[a] State’s dignitary interest bears consideration when a district court exercises
discretion in a case of this order,” in some cases “concerns of judicial economy and
restraint are overriding” and make it proper to address personal jurisdiction first. Id. at
586. “The federal design allows leeway for sensitive judgments of this sort.” Id. at 587.
Thus, in this case the district court had properly exercised its sound discretion in
ruling initially (before the appeal to this court) that it could address personal jurisdiction
over CHSI before resolving subject-matter jurisdiction. Even when there is a question of
subject-matter jurisdiction lurking in the case that may well have to be resolved with
respect to other parties, a straightforward determination that the court lacks personal
jurisdiction over a party may be appropriate. After all, the party over which there is no
personal jurisdiction should not have to participate at all in the litigation in that forum. A
court sensitive to that concern is not abusing its discretion when it decides to relieve the
improper party of the burden of participation for what may be a lengthy period (here,
more than two years) before resolution of subject-matter jurisdiction. When the district
court vacated its earlier personal-jurisdiction ruling, it incorrectly based that ruling on an
assumed mandatory jurisdictional hierarchy. One can ask why a court without personal
jurisdiction can dismiss for lack of subject-matter jurisdiction but a court without subjectmatter
jurisdiction cannot dismiss for lack of personal jurisdiction.
To be sure, ordinarily a district court may revise a ruling disposing of one claim at
any time before entering final judgment on all claims. See Fed. R. Civ. P. 54(b). A
district court that has dismissed one of several parties for lack of personal jurisdiction
may revisit its ruling after determining that it also lacked subject-matter jurisdiction and
then decide to vacate the personal-jurisdiction ruling. But we need not discuss the
various considerations that might recommend one course or the other because that option
was not available to the district court in this case. This brings us to the second error in
vacating the personal-jurisdiction dismissal.
That error was to assume that our remand after the first appeal permitted the
district court to reconsider its earlier personal-jurisdiction dismissal. Our mandate did
not convey that authority. To begin with, although the Estate’s appeal in this court
originally included a challenge to the personal-jurisdiction dismissal, the Estate later
stipulated to dismissal with prejudice of its appeal with respect to CHSI, and this court
entered an order of dismissal. That ended the matter. When we issued our order and
judgment in the appeal, we did not include CHSI in the caption and we did not authorize
the district court to take any further action regarding CHSI. Our original opinion vacated
the district court’s rulings “on the supplemental claims . . . with instructions to the district
court to remand to New Mexico state court,” First 2016 Order at 13, but the only
“supplemental claims” before us at that time were the claims against Mountain View.
Indeed, the Estate’s opening brief on appeal (filed two days before the parties filed their
stipulated dismissal of the appeal on the CHSI claims) had urged only “remand [of] the
case against Mountain View to New Mexico state district court” if we affirmed the
dismissal of the claims against the United States for lack of subject-matter jurisdiction.”
Aplt.’s Opening Br. at 27, Estate of Cummings I (10th Cir. July 15, 2015). Finally, to
eliminate any vestige of ambiguity we revised the dispositional paragraph of our opinion
at the urging of Mountain View, which expressly requested clarification that the district
court was not to remand the claims against CHSI, so that we now vacated only the
“rulings on the supplemental claims against Mountain View.” Estate of Cummings I, 651
F. App’x at 828.
A lower court is “bound to carry the mandate of the upper court into execution and
[cannot] consider the questions which the mandate laid at rest.” Sprague v. Ticonic Nat’l
Bank, 307 U.S. 161, 168 (1939); accord Ins. Grp. Comm. v. Denver & Rio Grande W.
R.R. Co., 329 U.S. 607, 612 (1947) (“When matters are decided by an appellate court, its
rulings, unless reversed by it or a superior court, bind the lower court.”); Bryan A. Garner
et al., The Law of Judicial Precedent § 55 at 459 (2016) (Law of Judicial Precedent)
(“When a case has been heard and determined by an appellate court, the legal rules and
principles laid down as applicable to it bind the trial court in all further proceedings in the
same lawsuit. They cannot be reviewed, ignored, or departed from.”). Failing to raise an
issue on appeal, or abandoning an issue that was initially raised, has the same
consequences for that litigation as an adverse appellate ruling on that issue. Thus, the
mandate rule applies not only to issues on which the higher court has ruled but also
“forecloses litigation of issues decided by the district court but [forgone] on appeal or
otherwise waived.” Doe v. Chao, 511 F.3d 461, 466 (4th Cir. 2007) (internal quotation
marks omitted); see United States v. Husband, 312 F.3d 247, 250 (7th Cir. 2002) (“[A]ny
issue that could have been but was not raised on appeal is waived and thus not
remanded.”); id. at 251 (“Parties cannot use the accident of remand as an opportunity to
reopen waived issues.” (brackets and internal quotation marks omitted)).
We review de novo whether a district court complied with our mandate. See
Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251, 1256 (10th Cir. 2016).
We examine whether the issue is foreclosed “either explicitly or by necessary
implication.” Guidry v. Sheet Metal Workers Int’l Ass’n, Local No. 9, 10 F.3d 700, 705
(10th Cir. 1993), abrogated in part on other grounds on reh’g, 39 F.3d 1078 (10th Cir.
1994) (en banc).
Our analysis can be brief. The Estate explicitly abandoned “with prejudice” its
challenge on appeal to the personal-jurisdiction dismissal of CHSI. And nothing in our
opinion resolving the appeal gave the district court leeway to do anything but execute the
ministerial duty of vacating its rulings on the supplemental claims against Mountain
View and remanding them to state court. Indeed, making this crystal clear was the very
purpose of our revision to our dispositional language specifying that only the claims
against Mountain View were to be remanded. Our mandate barred any further action
with respect to the claims against CHSI. Even if we erred in that regard, district courts
are not authorized to correct our errors.
We conclude that it was improper to vacate the dismissal of CHSI and to remand
the claims against CHSI to the state court. We now explain why we have jurisdiction to
reverse those rulings.
B. Jurisdiction to Review the District Court’s Decision
The Estate contends that even if the remand of the claims against CHSI to state
court was improper, this court lacks jurisdiction to review the remand. To resolve this
issue, we consider two subsections of 28 U.S.C. § 1447 and cases construing them. The
pertinent language of § 1447(c) is:
A motion to remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after the filing of
the notice of removal under section 1446(a). If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction,
the case shall be remanded.
28 U.S.C. § 1447(c) (emphasis added). And the language of subsection (d) is: “An order
remanding a case to the State court from which it was removed is not reviewable on
appeal or otherwise, except [when the case was removed under one of two statutes not
applicable here].” Id. § 1447(d).
The language of § 1447(d) appears to be categorical, forbidding any review of the
remand order in this case. The Supreme Court, however, has limited the restriction in
§ 1447(d) to only those remands that are colorably authorized by § 1447(c), and the
district court’s remand in this case does not satisfy that requirement because it was
ordered after final judgment.
The leading case is Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336
(1976).2 After two Kentucky residents sued an Indiana corporation and an Indiana
resident in Kentucky state court, the defendants removed the case to federal district court.
See id. at 337–38. Stating that its docket was jammed for the foreseeable future and that
state-court resolution would likely be faster, the district court ordered the defendants to
explain why remand would be inappropriate. See id. at 339. Unsatisfied with the
response, the district court remanded the case. See id. at 341. The defendants petitioned
the Sixth Circuit for a writ of mandamus, but that court denied the petition, citing
§ 1447(d). See id. at 341–42.
The Supreme Court reversed. See id. at 342. The Court stated that § 1447(d) “is
not dispositive of the reviewability of remand orders in and of itself”; rather, it “must be
construed together” with § 1447(c). Id. at 345. Doing so, the Court concluded that “only
remand orders issued under § 1447(c) and invoking the grounds specified therein . . . are
2 Although the language of § 1447 has been tweaked over the years, the Supreme Court
thus far has assumed that the changes in the language do not affect the analysis and
conclusions in Thermtron or the Supreme Court cases following it. See Powerex Corp. v.
Reliant Energy Servs., Inc., 551 U.S. 224, 229–30 (2007); see also Carlsbad Tech., Inc.,
v. HIF Bio, Inc., 556 U.S. 635, 638 (2009).
immune from review under § 1447(d).” Id. at 346. Although § 1447(d) “prohibits
review of all remand orders issued pursuant to § 1447(c) whether erroneous or not,” id. at
343, the district court’s remand ground—docket burdens—was not a § 1447(c) ground
and hence the remand was reviewable. See id. at 343–44.
The Court recognized that the purpose of § 1447(d) was to “prevent delay in the
trial of remanded cases by protracted litigation of jurisdictional issues.” Id. at 351. But
this purpose, it said, should not bar review when a district judge has “remanded a
properly removed case on grounds that he had no authority to consider.” Id. The Court
was concerned that without this limitation on the denial of reviewability, the district
courts could be, as in that case, utterly lawless. The Court was “not convinced that
Congress ever intended to extend carte blanche authority to the district courts to revise
the federal statutes governing removal by remanding cases on grounds that seem
justifiable to them but which are not recognized by the controlling statute.” Id. at 350.
And it noted that the Court had “not yet construed the present or past prohibition against
review of remand orders so as to extinguish the power of an appellate court to correct a
district court that has not merely erred in applying the requisite provision for remand but
has remanded a case on grounds not specified in the statute and not touching the
propriety of the removal.” Id. at 352.
Following Thermtron, the Supreme Court has not permitted review by appellate
courts of remand orders colorably authorized by § 1447(c)—namely, remands for lack of
jurisdiction, see Powerex Corp., 551 U.S. at 234 (ground of remand was “colorably
characterized as subject-matter jurisdiction”), or for defects in removal procedure, see
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 128 (1995) (remanded because
removal was untimely). But appellate courts can review remands based on other
grounds, such as the district court’s discretionary decision to decline to exercise
supplemental jurisdiction over state-law claims, see Carlsbad Tech., Inc., 556 U.S. at
638–41, or its decision to abstain under Burford v. Sun Oil Co., 319 U.S. 315 (1943), see
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 710–11 (1996). Recently, we followed
this line of cases in holding that we could review a district court’s remand based on its
determination that the removing party had waived its right to removal. See City of
Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1091–98 (10th Cir. 2017).
In our view, Thermtron and its successors authorize review of the remand order in
this case. Section 1447(c) authorizes remand for lack of subject-matter jurisdiction only
“at any time before final judgment.” The district court in this case issued its remand
order after final judgment. The order was therefore on its face not a remand under
§ 1447(c) and is reviewable.
The Fifth Circuit addressed this issue in In re Carter, 618 F.2d 1093, 1097–100
(5th Cir. 1980). In that case a Georgia resident sued an international union and its local
affiliate in state court, claiming that union representatives had conspired to deprive him
of employment and to impugn his reputation. See id. at 1096–97. The local answered,
but the international did not, eventually leading to a default judgment against the
international. See id. at 1097. The plaintiff dismissed the local so that the state-court
trial considered only damages against the international, which the jury awarded. See id.
The international appealed, claiming it had never been properly served, and the Georgia
Supreme Court agreed and reversed. When the plaintiff later effected proper service on
the international, the international removed the case to federal court, asserting federalquestion
jurisdiction. See id. The plaintiff’s complaint itself did not explicitly assert any
federal cause of action, and he indicated to the district court that he was pursuing only
state-law causes of action; but the case was not remanded to state court. See id. After a
jury trial led to a verdict for plaintiff and the district court entered a final judgment, the
international moved to vacate the judgment, claiming the district court lacked subjectmatter
jurisdiction. See id. Agreeing that it lacked jurisdiction, the district court vacated
the judgment and remanded the case to Georgia state court. See id. The plaintiff then
petitioned the Fifth Circuit for a writ of mandamus to review the remand order. See id.
The Fifth Circuit determined that notwithstanding § 1447(d), it could review the
order. See id. at 1098–100. Because the order issued not before final judgment, but after
it, the Fifth Circuit concluded that the remand order was not a remand under § 1447(c).
See id. at 1099–100; see also id. at 1098 n.3 (observing that previous versions of the
statute allowed remands “at any time”). And given Thermtron’s linkage of § 1447(c) and
§ 1447(d), § 1447(d) did not apply. The court persuasively analyzed the policy
supporting this exception to § 1447(d) for remand orders entered after a final judgment,
saying that the “considerations of prompt and efficient judicial resolution of substantive
controversies that inform a rule of nonreviewability of remand orders issued before final
judgment in a removed case do not apply with the same force to remand orders issued
subsequent to entry of final judgment in a removed case.” Id. at 1099. It stated:
Whereas before final judgment the nonreviewability of remand orders
serves to ensure the expeditious resolution of the case in a court of
competent jurisdiction—the court in which the action was originally filed—
and to minimize the expenditure of scarce federal judicial resources at the
appellate level, once a case has been fully tried in a federal court and a final
judgment entered, the equation alters markedly.
Id. Improper remand after judgment, it said, can result in significant waste:
Federal judicial resources, once expended upon the trial of a cause,
obviously cannot be recouped by relitigation in a state court. An order of
remand after entry of final judgment no longer fosters prompt resolution of
the merits of the case, but serves instead only to delay final resolution by
subjecting the litigants to a second, and the state court to a possibly
duplicative, trial of the same matter.
Id. Therefore, “[e]xtending the prohibition of review in [§ 1447(d)] to a remand order
entered outside the time frame specified in [§ 1447(c)] . . . promotes not at all the
congressional policy that is the foundation of [§ 1447(d)] and can only compound
unnecessarily the undesirable consequences that ineluctably accompany any rule which
makes a possible judicial error unreviewable.” Id. The court observed that a remand
after final judgment by a district court “is more closely akin to a remand of a removed
case ordered by an appellate court than it is to a remand by the trial court before a final
judgment has been rendered.” Id. at 1100. And it pointed out that “[r]emands ordered by
appellate courts returning removed cases to state courts have never been presumed to
come within the bar of § 1447(d) or its predecessors.” Id. (citing Willingham v. Morgan,
395 U.S. 402, 404 (1969); Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 467 (1947);
and Gay v. Ruff, 292 U.S. 25, 30 (1934)).
We agree with this reasoning and hold that the § 1447(d) reviewability bar does
not apply to remand orders entered by a district court after final judgment.
There remains only the question whether the district court’s order remanding the
claims against CHSI was “before final judgment.” 28 U.S.C. § 1447(c). We are not
aware of any precedent that defines the term final judgment in § 1447(c). The context in
which courts most frequently address the meaning of finality is when an appellate court is
addressing whether a district-court decision is appealable under the final-judgment rule of
28 U.S.C. § 1291, which limits appeals to “final decisions.” In that context, a decision is
final if it “ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). We recently
said that a decision was final when it left “only a ministerial task.” Tennille v. W. Union
Co., 774 F.3d 1249, 1253 (10th Cir. 2014). Similarly, in determining whether a statecourt
decision was a final judgment reviewable by the Supreme Court, the Court has said
that “if nothing more than a ministerial act remains to be done, such as the entry of a
judgment upon a mandate, the decree is regarded as concluding the case and is
immediately reviewable.” Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68
But a formal definition of finality that can mechanically be applied in all
circumstances is unattainable. The purpose being served by the term must always be
considered. As the Supreme Court has repeatedly noted in the context of § 1291,
“finality is to be given a practical rather than a technical construction.” Microsoft Corp.
v. Baker, 137 S. Ct. 1702, 1712 (2017) (internal quotation marks omitted).
In the context of district-court action after an appeal, sometimes it is
straightforward whether a decision comes after a final judgment. In this litigation, the
first appeal—which was brought by the Estate—was from a final judgment of the district
court. If we had affirmed that judgment in full, there would be no reason to treat the case
after remand as having a different status for purposes of § 1447(c) than if there had been
no appeal. There could be no debate that a later order by the district court vacating its
dismissal of CHSI and remanding the claims against CHSI to state court would have been
after final judgment. On the other hand, if we had reversed and remanded with directions
to the district court to conduct further proceedings—such as an evidentiary hearing to
determine whether the physician defendants were actually working for the Public Health
Service or whether the Estate had submitted a timely notice of claim—then a judgment
entered by the district court after conducting such proceedings would be a new final
What did happen, however, was we affirmed the district court in part and reversed
and remanded with instructions to that court to perform what can only be characterized as
ministerial tasks, requiring the exercise of no discretion by the district court whatsoever.
The judgment of this court instructing the district court precisely what to do is about as
final as it gets. In terms of the role of the district court after remand, it had as little
independent responsibility as if we had affirmed in full. Any further action by the district
court beyond executing the ministerial tasks required by our mandate would be as much
after final judgment as action taken by the district court after its original final judgment
had it not been appealed.3
3 The Estate argues that the district court’s order remanding the claims against CHSI to
state court satisfied § 1447(c) because that remand was the final judgment. But § 1447(c)
The same pragmatic reasons described by the Fifth Circuit in Carter as supporting
review of district-court remand decisions made after the district court has disposed of a
case in a final judgment also support our review in this case. Appellate review can avoid
wasteful, duplicative litigation in state court. And there is another reason, one
fundamental to the hierarchical nature of the courts, for treating this court’s judgment on
the first appeal—which left nothing further to the discretion of the district court—as the
“final judgment” after which a district-court remand order would be reviewable. It is
essential that district courts comply with our mandates. “For appellate review to be
meaningful, the decisions of the appellate court must bind the lower court on remand.
Even if the appellate court may be incorrect, finality and the structure of the system
require adherence to its decisions.” Law of Judicial Precedent § 55 at 459; see also 18B
Charles Alan Wright et al., Federal Practice and Procedure § 4478.3 at 733 (2d ed. 2002)
(“[A]n inferior tribunal is bound to honor the mandate of a superior court within a single
judicial system. There is nothing surprising about the basic principle, which inheres in
the nature of judicial hierarchy . . . .”). If the need for finality justifies the restriction in §
1447(c) on remands after district-court entry of final judgment in the first instance, that
need is magnified when a federal appellate court has fully and finally disposed of federal
consideration of the litigation.4
* * *
authorizes removal only “before final judgment.” And the Estate’s argument proves too
much. If a remand order issued after what would otherwise be a final judgment would
satisfy § 1447(c), then a remand order would never run afoul of the “before” requirement.
4 In light of our disposition, there is no need for us to address CHSI’s contention that the
district court’s January 2017 order and judgment violated CHSI’s due-process rights.
Outcome: The Estate’s motion to dismiss the appeal is DENIED and the district court’s
January 2017 order and judgment vacating the dismissal of the claims against CHSI and remanding those claims to state court is REVERSED. We REMAND this case to the
district court solely for the purpose of ruling on CHSI’s request for injunctive relief with respect to the pending state proceedings. We DENY as moot CHSI’s motion for expedited consideration.