United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20337

____________

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 28 

U.S.C. § 1447(c). We agree, but our 40-plus-year-old precedent provides 

otherwise, holding that a waiver-based remand order is jurisdictional under 

United States Court of Appeals

Fifth Circuit

FILED

July 25, 2024

Lyle W. Cayce

Clerk

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§ 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, 610 F.2d 335 (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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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, 28 U.S.C. § 1447(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 28 U.S.C. § 1441(a) (providing that a defendant may remove any civil action 

in which “the district courts of the United States have original jurisdiction”); see also id.

§ 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., 227 F.3d 236, 244 (5th Cir. 2000). 

6 Harrow v. Dep’t of Def., 601 U.S. 480, 487 (2024). 

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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, 423 U.S. 336, 345–46 (1976); see also

Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995) (“§ 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., 989 F.3d 301, 310–11 (5th Cir. 2021). 

9 Schexnayder v. Entergy La., Inc., 394 F.3d 280, 283 (5th Cir. 2004). 

10 See id. (listing examples of discretionary grounds for removal). 

11 Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 715 (1996). 

12 Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 641 (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., 252 F.3d 796, 797 (5th Cir. 2001) (“When a district court remands a suit relying on a 

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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.”). 

14 610 F.2d 335 (5th Cir. 1980).

15 See Act of Oct. 14, 1980, Pub L. No. 96–452, 94 Stat. 1994. 

16 Weaver, 610 F.2d at 336.

17 Id. at 336 n.2.

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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 districtcourt 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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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 Id.

23 Petrarca, 516 U.S. at 127.

24 City of Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1094 (10th Cir. 2017). 

25 Rothner v. City of Chicago, 879 F.2d 1402, 1417 (7th Cir. 1989).

26 Id. at 1419 (Easterbrook, J., dissenting). 

27 See Schmitt v. Ins. Co. of N.A., 845 F.2d 1546, 1549, 1551 (9th Cir. 1988); see also 

Kunzi v. Pan Am. World Airways, Inc., 833 F.2d 1291, 1294 n.7 (9th Cir. 1987). 

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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, 456 U.S. 694, 702 

(1982) (“[N]o action of the parties can confer subject-matter jurisdiction upon a federal 

court.”); see also Kontick v. Ryan, 540 U.S. 443, 456 (2004) (“Characteristically, a court’s 

subject-matter jurisdiction cannot be expanded to account for the parties’ litigation 

conduct[.]”); Buchner v. F.D.I.C., 981 F.2d 816, 818 (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., 864 F.3d at 1093. 

30 Id.

31 See Adair v. Lease Partners, Inc., 587 F.3d 238, 240 (5th Cir. 2009) (reviewing 

discretionary remands for abuse of discretion). 

32 Badaiki v. Schlumberger Holdings Corp., 512 F. Supp. 3d 741, 745 (S.D. Tex. 2021) 

(Eskridge, J.). 

33 See Sheldon v. Sill, 49 U.S. 441, 449 (1850); see also In re Carter, 618 F.2d 1093, 

1100 (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., 989 F.3d 291, 

298 (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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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, 879 

F.2d at 1419 (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, 159 U. Pa. L. Rev.

493, 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, 879 F.3d 155, 164 (5th Cir. 2018). 

37 Act of June 25, 1948, ch. 646, 62 Stat. 939. 

38 See Act of Nov. 19, 1988, Pub. L. No. 100–702, 102 Stat. 4642. We recognize that 

one relevant revision following the 1988 amendment was exchanging the term 

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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 

62 Stat. 939, § 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, 423 U.S. at 344 n.8. 

39 See Act of June 25, 1948, ch. 646, 62 Stat. 939.

40 Quackenbush, 517 U.S. at 715 (“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., 460 U.S. 1 (1983)], however, we disavow it.”). 

41 Act of Oct. 1, 1996, Pub. L. No. 104–219, 110 Stat. 3022. 

42 Grace Ranch, 989 F.3d at 311.

43 Id. at 312–13.

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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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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., 864 F.3d 

1089, 1094 (10th Cir. 2017) (declaring “we can fathom no explanation” for 

why Weaver equated waiver-by-participation with jurisdiction); Rothner v. 

City of Chicago, 879 F.2d 1402, 1417 (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 id. 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., 517 U.S. 706, 

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, 516 U.S. 124, 127 (1995))). Only Weaver bars the way.

The proper course is for our en banc Court to unweave Weaver.

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