The present state of the law governing the procedure for remand on certain grounds is inconsistent and unclear, yet the full extent of the problem is not widely discussed or recognized. The root of the problem arises from an incongruence between a plain reading of the statute governing remand procedures, 28 U.S.C § 1447, and the case law interpreting the statute. Historically, this statute was strictly construed; however, the Supreme Court departed from this canon of construction with its decision in Thermtron Prod., Inc. v. Hermansdorfer.
While the language of § 1447(d) bars appellate review of remand orders, the Court in Thermtron created an exception to the bar despite the clear statutory language to the contrary. In the cases that followed Thermtron, this exception widened to include an entire class of remand bases that are both non-procedural and non-jurisdictional in nature and are thus subject to different procedural standards than the statutory language propounds. The application of different standards to this class of remand bases has expanded beyond the appellate bar contained within § 1447(d) to the provision setting forth the grounds upon which one may move for remand and the appropriate timeframe to do so contained within § 1447(c).
Part I chronicles the history of the remand statutes and the state of the law leading up to the Supreme Court’s landmark decision in Thermtron. Next, Part II discusses how the Thermtron Court’s departure from strict statutory construction acted as a catalyst for the current ambiguity in this area of the law. Then, Part III discusses recent amendments to § 1447(c) related to the class of Thermtron exceptions and sheds light on the little-known “reasonable time” standard that has been applied to this class as a result of the latest amendment. Finally, Part IV proposes potential solutions that would clarify procedure in this area of the law.