OPINION OF THE COURT
POWEREX CORP. V. RELIANT ENERGY SERVICES, INC.
551 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 05-85
POWEREX CORP., PETITIONER
v. RELIANT
ENERGY SERVICES, INC., et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[June 18, 2007]
Justice Scalia delivered the
opinion of the Court.
We granted certiorari to decide
whether, under the Foreign Sovereign Immunities Act of 1976 (FSIA),
petitioner is an “organ of a foreign state or political subdivision
thereof.” 28 U. S. C. §1603(b)(2). When we granted certiorari,
however, we asked the parties also to address whether the Ninth
Circuit had appellate jurisdiction in light of 28 U. S. C.
§1447(d).
I
The procedural history of this
case is long and complicated; we recount only what is necessary to
resolve the writ before us. The State of California, along with
some private and corporate citizens (hereinafter collectively
referred to as plaintiffs-respondents), filed suits in California
state courts against various companies in the California energy
market, alleging that they had conspired to fix prices in violation
of California law. Some of those defendants, in turn, filed
cross-claims seeking indemnity from,
inter alios, the
Bonneville Power Administration (BPA), the Western Area Power
Administration (WAPA), the British Columbia Hydro and Power
Authority (BC Hydro), and petitioner Powerex (we shall sometimes
refer to these entities collectively as the cross-defendants). BPA
and WAPA are agencies of the United States Government. BC Hydro is
a crown corporation of the Canadian Province of British Columbia
that is wholly owned by the Province and that all parties agree
constitutes a “foreign state” for purposes of the FSIA. See §1603.
Petitioner, also a Canadian corporation, is a wholly owned
subsidiary of BC Hydro.
The cross-defendants removed the
entire case to federal court. BC Hydro and petitioner both relied
on §1441(d), which permits a “foreign state,” as defined by
§1603(a) of the FSIA, to remove civil actions brought against it in
state court. BPA and WAPA invoked §1442(a), authorizing removal by
federal agencies. Plaintiffs-respondents moved to remand, arguing
that petitioner was not a foreign state, and that the cross-claims
against BPA, WAPA, and BC Hydro were barred by sovereign immunity.
Petitioner opposed remand on the ground that it was a foreign state
under the FSIA; the other cross-defendants opposed remand on the
ground that their sovereign immunity entitled them to be dismissed
from the action outright.
The District Court initially concluded (we
assume correctly) that §1442(a) entitled BPA and WAPA to remove the
entire case and that BC Hydro was similarly entitled under
§1441(d). App. to Pet. for Cert. 20a. It thus believed that whether
the case should be remanded “hinge[d on its] jurisdictional
authority to hear the removed claims, not whether the actions were
properly removed in the first instance.”
Ibid. The
District Court held that petitioner did not qualify as a foreign
sovereign under the FSIA.
Id., at 33a–38a. It also decided
that BC Hydro enjoyed sovereign immunity under the FSIA.
Id., at 21a–33a. And it concluded that BPA and WAPA were
immune from suit in state court, which the court believed deprived
it of jurisdiction over the claims against those agencies.
Id., at 38a–44a. Having reached these conclusions, the
District Court remanded the entire case.
Id., at 44a.
Petitioner appealed to the Court of Appeals
for the Ninth Circuit, arguing that it was a foreign sovereign
under the FSIA. BPA and WAPA (but not BC Hydro) also appealed,
asserting that the District Court, before remanding the case,
should have dismissed them from the action in light of their
sovereign immunity. Plaintiffs-respondents, for their part,
rejoined that both appeals were jurisdictionally barred by §1447(d)
and that the District Court had not erred in any event. The Ninth
Circuit rejected the invocation of §1447(d), holding that that
provision did not preclude it from reviewing substantive issues of
law that preceded the remand order.
California v.
NRG
Energy Inc., 391 F. 3d 1011, 1022–1023 (2004). It also
found that the District Court had jurisdiction over the case
because BPA, WAPA, and BC Hydro properly removed the entire action.
Id., at 1023. Turning to the merits, the Ninth Circuit
affirmed the holding that petitioner was not a “foreign state” for
purposes of the FSIA.
Id., at 1025–1026. It also upheld
the District Court’s conclusion that BPA, WAPA, and BC Hydro
retained sovereign immunity,
id., at 1023–1025, but
reversed its decision not to dismiss BPA and WAPA before remanding,
id., at 1026–1027.
Petitioner sought certiorari review of the
Ninth Circuit’s determination that it was not an “organ of a
foreign state or political subdivision thereof” under §1603(b)(2).
We granted certiorari on this question, but asked the parties to
address in addition whether the Ninth Circuit had jurisdiction over
petitioner’s appeal notwithstanding §1447(d). 549 U. S. ____
(2007).
II
The authority of appellate courts
to review district-court orders remanding removed cases to state
court is substantially limited by statute. Title 28 U. S. C.
§1447(d) provides (with an exception for certain civil rights
cases) that “[a]n order remanding a case to the State court from
which it was removed is not reviewable on appeal or otherwise.”
Determining whether the Ninth Circuit was permitted to review the
District Court’s remand is, alas, not as easy as one would expect
from a mere reading of this text, for we have interpreted §1447(d)
to cover less than its words alone suggest. In
Thermtron
Products, Inc. v.
Hermansdorfer,
423 U. S. 336, 345–346
(1976), we held that §1447(d) should be read
in pari
materia with §1447(c), so that only remands based on the
grounds specified in the latter are shielded by the bar on review
mandated by the former. At the time of
Thermtron, §1447(c)
stated in relevant part:
“ ‘If at any time before final judgment it
appears that the case was removed improvidently and without
jurisdiction, the district court shall remand the case.’ ”
Id., at 342.
Consequently,
Thermtron limited §1447(d)’s
application to such remands.
Id., at 346. In 1988,
Congress amended §1447(c) in relevant part as follows:
“A motion to remand the case on the basis of any
defect in removal procedure must be made within 30 days after the
filing of the notice of removal under [28 U. S. C. §]1446(a).
If at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.” §1016(c)(1), 102 Stat. 4670.
When that version of §1447(c) was in effect, we
thus interpreted §1447(d) to preclude review only of remands for
lack of subject-matter jurisdiction and for defects in removal
procedure. See
Quackenbush v.
Allstate Ins. Co.,
517 U. S. 706,
711–712 (1996);
Things Remembered, Inc. v.
Petrarca,
516 U. S. 124, 127–128 (1995).
Although §1447(c) was amended yet again in
1996, 110 Stat. 3022, we will assume for purposes of this case that
the amendment was immaterial to
Thermtron’s gloss on
§1447(d), so that the prohibition on appellate review remains
limited to remands based on the grounds specified in
Quackenbush. We agree with petitioner that the remand
order was not based on a defect in removal procedure, so on the
foregoing interpretation of
Thermtron the remand is
immunized from review only if it was based on a lack of
subject-matter jurisdiction.
A
The principal submission of the
Solicitor General and petitioner is that the District Court’s
remand order was not based on a lack of “subject matter
jurisdiction” within the meaning of §1447(c) because that term is
properly interpreted to cover
only “a defect in subject
matter jurisdiction
at the time of removal that rendered
the removal itself jurisdictionally improper.”
Brief for United States as
Amicus Curiae 8; see also
id., at 8–11; Brief for Petitioner 42–45. Under this
interpretation, the District Court’s remand order was not based on
a defect in subject-matter jurisdiction for purposes of §1447(c),
since the cross-defendants other than petitioner were statutorily
authorized to remove the whole case in light of their sovereign
status. The Ninth Circuit appears to have relied, at least in part,
on this rationale. See 391 F. 3d, at 1023.
We reject this narrowing
construction of §1447(c)’s unqualified authorization of remands for
lack of “subject matter jurisdiction.” Nothing in the text of
§1447(c) supports the proposition that a remand for lack of
subject-matter jurisdiction is not covered so long as the case was
properly removed in the first instance. Petitioner and the
Solicitor General do not seriously dispute the absence of an
explicit textual limitation. Instead, relying on the statutory
history of §1447(c), they make a three-step argument why the
provision is implicitly limited in this manner. First, they note
that the pre-1988 version of §1447(c) mandated remand “[i]f at any
time before final judgment it appear[ed] that the case was removed
improvidently and without jurisdiction,” 28 U. S. C. §1447(c)
(1982 ed.). That version, obviously, authorized remand only for
cases that were
removed improperly. Second, they contend
that the purpose of the 1988 amendment was to impose a time limit
for raising nonjurisdictional objections to removal, a contention
that is certainly plausible in light of the structure of the
amended provision:
“A motion to remand the case on the basis of any
defect in removal procedure 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.” §1447(c)
(1988 ed.).
Finally, they conclude that since the purpose of
the amendment was to alter the timing rules, there is no reason to
think that Congress broadened the scope of §1447(c) to authorize
the remand of cases that had been properly removed. The language
“lacks subject matter jurisdiction,” which was newly added to
§1447(c), must be construed to cover only cases in which
removal was jurisdictionally improper at the outset.
But the very statutory history upon which this
creative argument relies conclusively refutes it. The same section
of the public law that amended §1447(c) to include the phrase
“subject matter jurisdiction” also created a new §1447(e). See
§1016(c), 102 Stat. 4670. Section 1447(e), which remains on the
books, states:
“If after removal the plaintiff seeks to join
additional defendants whose joinder would destroy subject matter
jurisdiction, the court may deny joinder, or permit joinder and
remand the action to the State court.”
This unambiguously demonstrates that a case can be
properly removed and yet suffer from a failing in
subject-matter jurisdiction that requires remand. A
standard principle of statutory construction provides that
identical words and phrases within the same statute should normally
be given the same meaning. See,
e.g., IBP, Inc.
v.
Alvarez,
546 U. S. 21, 34 (2005).
That maxim is doubly appropriate here, since the phrase “subject
matter jurisdiction” was inserted into §1447(c) and §1447(e) at the
same time. There is no reason to believe that the new language in
the former provision, unlike the new language simultaneously
inserted two subsections later, covers
only cases in which
removal itself was jurisdictionally improper. We hold that when a
district court remands a properly removed case because it
nonetheless lacks subject-matter jurisdiction, the remand is
covered by §1447(c) and thus shielded from review by
§1447(d).[
Footnote 1]
B
That holding requires us to
determine whether the ground for the District Court’s remand in the
present case was lack of subject-matter jurisdiction. As an initial
matter, it is quite clear that the District Court was
purporting to remand on that ground. The heading of the
discussion section of the remand order is entitled “Subject Matter
Jurisdiction Over the Removed Actions.” App. to Pet. for Cert. 20a.
And the District Court explicitly stated that the remand “issue
hinges . . . on the Court’s jurisdictional authority to hear the
removed claims.”
Ibid. Were any doubt remaining, it is
surely eliminated by the District Court’s order denying a stay of
the remand, which repeatedly stated that a lack of subject-matter
jurisdiction required remand pursuant to §1447(c). See App.
281–286.
For some Members of this Court,
the foregoing conclusion that the District Court purported to
remand for lack of subject-matter jurisdiction is alone enough to
bar review under §1447(d). See
Osborn v.
Haley,
549 U. S. ___, ___ (2007) (slip op., at 2–3) (Scalia, J., joined by
Thomas, J., dissenting). Even assuming, however, that §1447(d)
permits appellate courts to look behind the district court’s
characterization, see
Kircher v.
Putnam Funds
Trust, 547 U. S. ___, ___, n. 9 (2006) (slip op., at 7,
n. 9) (reserving the question), we conclude that appellate
review is barred in this case.[
Footnote 2] There is only one
plausible
explanation of what legal ground the District Court actually relied
upon for its remand in the present case. As contended by
plaintiffs-respondents, it was the court’s lack of
power
to adjudicate the claims against petitioner once it concluded both
that petitioner was not a foreign state capable of independently
removing and that the claims against the other removing
cross-defendants were barred by sovereign immunity. Brief for
Plaintiffs-Respondents 17–21, 25–26. Though we have not passed on
the question whether, when sovereign immunity bars the claims
against the only parties capable of removing the case,
subject-matter jurisdiction exists to entertain the remaining
claims, cf. n. 3,
infra, the point is certainly
debatable. And we conclude that review of the District Court’s
characterization of its remand as resting upon lack of
subject-matter jurisdiction, to the extent it is permissible at
all, should be limited to confirming that that characterization was
colorable. Lengthy appellate disputes about whether an arguable
jurisdictional ground invoked by the district court was properly
such would frustrate the purpose of §1447(d) quite as much as
determining whether the factfinding underlying that invocation was
correct. See
Kircher,
supra, at ___ (slip op., at
2–3) (Scalia, J., concurring in part and concurring in judgment).
Moreover, the line between misclassifying a ground as
subject-matter jurisdiction and misapplying a proper ground of
subject-matter jurisdiction is sometimes elusively thin. To decide
the present case, we need not pass on whether §1447(d) permits
appellate review of a district-court remand order that dresses in
jurisdictional clothing a patently nonjurisdictional ground (such
as the docket congestion invoked by the District Court in
Thermtron, 423 U. S., at 344). We hold that when, as here,
the District Court relied upon a ground that is colorably
characterized as subject-matter jurisdiction, appellate review is
barred by §1447(d).
Petitioner puts forward another explanation
for the remand, which we find implausible. Petitioner claims that,
because the entire case was properly removed, the District Court
had the discretion to invoke a form of
supplemental
jurisdiction to hear the claims against it, and that its
remand rested upon the decision not to exercise that discretion. In
short, petitioner contends that the District Court was actually
relying on
Carnegie-Mellon Univ. v.
Cohill,
484 U. S. 343,
357 (1988), which authorized district courts to remand removed
state claims when they decide not to exercise supplemental
jurisdiction. Brief for Petitioner 45–48; Reply Brief for
Petitioner 16–20. It is far from clear, to begin with, (1) that
supplemental jurisdiction was even available in the circumstances
of this case;[
Footnote 3] and
(2) that when discretionary supplemental jurisdiction is declined
the remand is not based on lack of subject-matter jurisdiction for
purposes of §1447(c) and §1447(d).[
Footnote 4] Assuming those points, however, there is no
reason to believe that the District Court’s remand was actually
based on this unexplained discretionary decision. The District
Court itself
never mentioned the possibility of
supplemental jurisdiction, neither in its original decision, see
App. to Pet. for Cert. 20–44, nor in its order denying petitioner’s
motion to stay the remand pending appeal, App. 281–286. To the
contrary, as described above, it relied upon lack of subject-matter
jurisdiction—which, in petitioner’s view of things (but see
n. 4, this page) would not include a
Cohill remand.
Moreover, it does not appear from the record that petitioner ever
even argued to the District Court that supplemental jurisdiction
was a basis for retaining the claims against it. There is, in
short, no reason to believe that an unmentioned nonexercise of
Cohill discretion was the basis for the remand.
C
Part of the reason why the Ninth
Circuit concluded it had appellate jurisdiction is a legal theory
quite different from those discussed and rejected above.
Petitioner, along with the other appellants, convinced the court to
apply Circuit precedent holding that §1447(d) does not preclude
review of a district court’s merits determinations that precede the
remand. See 391 F. 3d, at 1023 (citing,
inter alia,
Pelleport Investors, Inc. v.
Budco Quality Theatres,
Inc., 741 F. 2d 273, 276–277 (CA9 1984)). Petitioner has
not completely abandoned this argument before us, see Brief for
Petitioner 50, and it is in any event desirable to address this
aspect of the Ninth Circuit’s judgment.
The line of Ninth Circuit
jurisprudence upon which petitioner relied appears to be invoking
our decision in
Waco v.
United States Fidelity &
Guaranty Co.,
293 U. S. 140 (1934).
There the District Court, in a single decree, had entered one order
dismissing a cross-complaint against one party, and another order
remanding because there was no diversity of citizenship in light of
the dismissal.
Id., at 142. We held that appellate
jurisdiction existed to review the order of dismissal, although we
repeatedly cautioned that the remand order itself could not be set
aside.
Id., at 143–144. The Ninth Circuit’s application of
Waco to petitioner’s appeal was mistaken. As we reiterated
in
Kircher, see 547 U. S., at ___, n. 13 (slip op., at 11,
n. 13),
Waco does not permit an appeal when there is
no
order separate from the unreviewable remand order. Here
petitioner can point to no District Court order, separate from the
remand, to which it objects and to which the issue of its foreign
sovereign status is material. Thus, petitioner’s invocation of
Waco amounts to a request for one of two impermissible
outcomes: an advisory opinion as to its FSIA status that will not
affect any order of the District Court, or a reversal of the remand
order.
Waco did not, and could not, authorize either form
of judicial relief.
D
Finally, petitioner contends,
with no textual support, that §1447(d) is simply inapplicable to a
suit removed under the FSIA. It asserts that “§1447(d) must yield
because Congress could not have intended to grant district judges
irrevocable authority to decide questions with such sensitive
foreign-relations implications.” Brief for Petitioner 49. We will
not ignore a clear jurisdictional statute in reliance upon
supposition of what Congress
really wanted. See
Connecticut Nat. Bank v.
Germain,
503 U. S. 249, 253–254
(1992). Petitioner’s divination of congressional intent is flatly
refuted by longstanding precedent:
“Section 1447(d) applies ‘not only to remand orders
made in suits removed under [the general removal statute], but to
orders of remand made in cases removed under any other statutes, as
well.’ . . . Absent a clear statutory command to the contrary, we
assume that Congress is ‘aware of the universality of th[e]
practice’ of denying appellate review of remand orders when
Congress creates a new ground for removal.”
Things
Remembered, 516 U. S., at 128 (quoting
United States
v.
Rice,
327 U. S. 742, 752
(1946); emphasis deleted and alterations in original).
Congress has repeatedly demonstrated its readiness
to exempt particular classes of remand orders from §1447(d) when it
wishes—both within the text of §1447(d) itself (which exempts civil
rights cases removed pursuant to 28 U. S. C. §1443), and in
separate statutes, see,
e.g., 12 U. S. C.
§1441a(
l)(3)(c), §1819(b)(2)(C); 25 U. S. C.
§487(d).
We are well aware that §1447(d)’s immunization
of erroneous remands has undesirable consequences in the FSIA
context. A foreign sovereign defendant whose case is wrongly
remanded is denied not only the federal forum to which it is
entitled (as befalls all remanded parties with meritorious appeals
barred by §1447(d)), but also certain procedural rights that the
FSIA specifically provides foreign sovereigns only in federal court
(such as the right to a bench trial, see 28 U. S. C. §1330(a);
§1441(d)). But whether that special concern outweighs §1447(d)’s
general interest in avoiding prolonged litigation on threshold
nonmerits questions, see
Kircher,
supra, at ___
(slip op., at 5), is a policy debate that belongs in the halls of
Congress, not in the hearing room of this Court. As far as the
Third Branch is concerned, what the text of §1447(d) indisputably
does prevails over what it ought to have done.[
Footnote 5]
* * *
Section 1447(d) reflects
Congress’s longstanding “policy of not permitting interruption of
the litigation of the merits of a removed case by prolonged
litigation of questions of jurisdiction of the district court to
which the cause is removed.”
Rice,
supra, at 751.
Appellate courts must take that jurisdictional prescription
seriously, however pressing the merits of the appeal might seem. We
hold that §1447(d) bars appellate consideration of petitioner’s
claim that it is a foreign state for purposes of the FSIA. We
therefore vacate in part the judgment of the Ninth Circuit and
remand the case with instructions to dismiss petitioner’s appeal
for want of jurisdiction.
It is so ordered.
Footnote 1
To be clear, we do not suggest that the
question whether removal is proper is
always different
from the question whether the district court has subject-matter
jurisdiction, for the two are often identical in light of the
general rule that postremoval events do not deprive federal courts
of subject-matter jurisdiction. See,
e.g., Wisconsin
Dept. of Corrections v.
Schacht,
524 U. S. 381, 391
(1998). We merely hold that when there is a divergence, such that a
district court lacks subject-matter jurisdiction to hear a claim
that was properly removed, the consequent remand is authorized by
§1447(c) and appellate review is barred by §1447(d).
Footnote 2
The Court’s opinion in
Osborn v.
Haley, 549 U. S. ___ (2007), had nothing to say about the
scope of review that is permissible under §1447(d), since it held
that §1447(d) was displaced in its entirety by 28 U. S. C.
§2679(d)(2). See 549 U. S., at ___ (slip op., at 15–16) (reasoning
that, of the two forum-determining provisions—§1447(d), the
generally applicable section, and §2679(d)(2), a special
prescription governing Westfall Act cases—“only one can
prevail”).
Footnote 3
Petitioner provides no authority from this
Court supporting the proposition that a district court presiding
over a multiparty removed case can invoke supplemental jurisdiction
to hear claims against a party that cannot independently remove
when the claims against the only parties authorized to remove are
barred by
sovereign immunity.
Footnote 4
We have never passed on whether
Cohill remands are subject-matter jurisdictional for
purposes of post-1988 versions of §1447(c) and §1447(d). See
Things Remembered,
Inc. v.
Petrarca,
516 U. S. 124, 129–130 (1995)
(Kennedy, J., concurring) (noting that the question is open); cf.
Cohill, 484 U. S., at 355, n. 11 (discussing the
pre-1988 version of §1447(c)).
Footnote 5
The dissent’s belief that there is an
implicit FSIA exception to §1447(d), see
post, at 1–6
(opinion of Breyer, J.), rests almost exclusively on our recent
decision in
Osborn. The dissent reads
Osborn to
stand for the proposition that any “conflict” between a specific,
later-enacted statute and §1447(d) should be resolved in favor of
the former.
Post, at 2–3. The reason why the dissent is
forced to the parenthetical admission that “
Osborn did not
say as much,”
post, at 2, is because the dissent
drastically overreads the case.
Osborn held only that
§1447(d) was trumped by the Westfall Act’s explicit provision that
removal was conclusive upon the Attorney General’s certification:
as between “the two antishuttling commands,” the Court said, “only
one can prevail.” 549 U. S., at ___ (slip op., at 16). The opinion
was quite clear that the
only statutory rivalry with which
it was concerned was dueling “antishuttling commands”: “Only in the
extraordinary case in which Congress has ordered the intercourt
shuttle to travel just one way—from state to federal court—does
today’s decision hold sway.”
Ibid. That is why
Osborn repeatedly emphasized that Westfall Act
certification is “ ‘conclusiv[e] . . .
for purposes of
removal,’ ”
id., at ___ (slip op., at 13, 14),
an emphasis that the dissent essentially ignores,
post, at
2–3.
Osborn is no license for courts to assume the
legislative role by characterizing the
consequences of
§1447(d)’s bar on appellate review as creating a
conflict,
leaving it to judges to suppress that provision when they think
Congress undervalued or overlooked those consequences. The dissent
renders a quintessential policy judgment in concluding that
appellate “delay is necessary, indeed, crucial,”
post, at
4, when the rights of a foreign sovereign are at stake. We have no
idea whether this is a wise balancing of the various values at
issue here. We are confident, however, that the dissent is wrong to
think that it would improve the “law in this democracy,”
post, at 6, for judges to accept the lawmaking power that
the dissent dangles before them.
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