PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2098

_____________

JOSEPH L. AGOSTINI, 

Individually and as co-executor of the estate of Jordyn 

Agostini, Deceased; 

SUELLEN AGOSTINI, 

Individually and as co-executor of the estate of Jordyn 

Agostini, Deceased; 

DOUGLAS J. HENEGAR, 

Individually and as natural father of Kyle Henegar, Deceased; 

SHARON K. HENEGAR, 

Individually and as administratrix of the estate of Kyle 

Henegar, Deceased;

DOUGLAS J. HENEGAR,

Individually and as natural father of Kristopher Henegar, 

Deceased;

SHARON K. HENEGAR,

Individually and as administratrix of the estate of Kristopher 

Henegar, Deceased

v.

PIPER AIRCRAFT CORPORATION; AVSTAR FUEL 

SYSTEMS; 

LYCOMING, a/k/a Lycoming Engines, 

a/k/a Textron Lycoming Reciprocating Engine Division; 
2

AVCO CORPORATION; TEXTRON, INC.; DUKES 

AEROSPACE, INC.; 

FLORIDA INSTITUTE OF TECHNOLOGY; F.I.T. 

AVIATION, LLC

 Avco Corporation and Textron, Inc.,

 Appellants

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 02-11-cv-07172

District Judge: The Honorable Mary A. McLaughlin

Before: SMITH, CHAGARES, and SCIRICA, Circuit Judges.

(Filed: September 5, 2013)

James E. Robinson, Esq.

Catherine B. Slavin, Esq.

Sara A. Frey, Esq.

Gordon & Rees

2005 Market Street

Suite 2900

Philadelphia, PA 19103

Counsel for Appellants

Bradley J. Stoll, Esq.

The Wolk Law Firm

1710-12 Locust Street

Philadelphia, PA 19103-0000
3

J. Denny Shupe, Esq.

Schnader Harrison Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Robert J. Williams

Schnader Harrison Segal & Lewis 

120 Fifth Avenue

2700 Fifth Avenue Place

Pittsburgh, PA 15222

Counsel for Appellees

________________

OPINION

________________

CHAGARES, Circuit Judge.

This motion to dismiss requires us to consider whether 

we have jurisdiction to review a district court’s denial of a 

motion for reconsideration when the order to be reconsidered 

is a remand to state court for lack of subject-matter 

jurisdiction. For the reasons that follow, we hold that 

although the District Court had jurisdiction to rule on the 

motion to reconsider the remand order in this particular 

instance, this Court has no jurisdiction to review the District 

Court’s ruling on the motion for reconsideration. 

Accordingly, we will grant the motion to dismiss the instant

appeal. 
4

I.

On November 11, 2010, an airplane crashed in West 

Palm Beach, Florida, resulting in the death of the pilot and 

three passengers. Personal representatives for the estates of 

the deceased pilot and two deceased passengers (collectively, 

the “plaintiffs”) filed suit in the Court of Common Pleas of 

Philadelphia County in November 2011, asserting state law 

claims against Textron, Inc., AVCO Corporation, and other 

corporate entities (collectively, the “defendants”). Textron 

removed the case to the United States District Court for the 

Eastern District of Pennsylvania under 28 U.S.C. § 1441, 

asserting diversity of citizenship pursuant to 28 U.S.C. 

§ 1332. The plaintiffs moved to remand the matter to state 

court, arguing that AVCO is a citizen of Pennsylvania, and 

therefore not diverse from all plaintiffs.

Based on the documents submitted by the plaintiffs, 

the District Court granted the plaintiffs’ motion on February 

29, 2012 and ordered that the case be remanded to 

Pennsylvania state court. AVCO moved for reconsideration 

of the remand order on March 13, 2012, arguing that the 

District Court improperly granted the motion to remand on 

the basis of unsubstantiated argument, unauthenticated 

documents, and facts outside the record that had not been 

established by affidavit or testimony. Citing the standard 

governing motions for reconsideration, the District Court

determined that it had not clearly erred in granting the 

plaintiffs’ motion to remand and therefore denied AVCO’s 

motion for reconsideration on March 15, 2012. A certified 

copy of the District Court’s February 29, 2012 remand order 
5

was mailed to the state court on March 20, 2012. The notice 

of appeal was filed on April 16, 2012.

II.

We begin by examining whether we have jurisdiction 

to consider this appeal. 28 U.S.C. § 1447(d) provides, in 

relevant part: “[a]n order remanding a case to the State court 

from which it was removed is not reviewable on appeal or 

otherwise . . . .” The plain text of § 1447(d) clearly bars our 

review of the District Court’s February 29, 2012 remand 

order. Indeed, in Quackenbush v. Allstate Insurance 

Company, the United States Supreme Court underscored that 

“only remands based on grounds specified in § 1447(c)” —

namely, remand orders based on the lack of subject-matter 

jurisdiction, like the remand order here — “are immune from 

review under § 1447(d).” 517 U.S. 706, 712 (1996)

(quotation marks omitted); see also 28 U.S.C. § 1447(c). 

Textron and AVCO (together, the “Lycoming defendants”) 

acknowledge — as they must — that we do not have 

jurisdiction to review the District Court’s remand order. 

Nevertheless, the Lycoming defendants maintain that we have 

appellate jurisdiction over the District Court’s denial of the 

motion for reconsideration. They argue that a remand order is 

distinct from a motion to reconsider a remand order, and that 

our review of the latter is not barred by § 1447(d). 

The plaintiffs respond that our review of the denial of 

the motion to reconsider the remand order would serve to

circumvent the jurisdiction-stripping function of § 1447(d). 

That is, if we do not have jurisdiction to review a remand 

order itself, we cannot have jurisdiction to review a motion to 

reconsider a remand order. The Lycoming defendants’ 
6

valiant effort to escape this rather self-evident principle relies 

upon their observation that “in certain circumstances,” “an 

appellate court . . . may reach the merits of an unreviewable 

remand order.” Brief of Lycoming Defendants in Opposition 

to Motion to Dismiss Appeal (“Defs. Br.”) 8. Culling several 

cases wherein a remand order was held subject to appellate 

review, the Lycoming defendants maintain that “the existence 

of a severable or separable order on the merits of a collateral 

issue, as opposed to an order on subject matter jurisdiction, is 

appealable notwithstanding 28 U.S.C. § 1447(c), and federal 

appellate courts have jurisdiction to review the order despite 

the fact that a case has been remanded to state court.” Id. at 

9. According to the Lycoming defendants, the motion to 

reconsider a remand order is just such a “collateral issue” 

over which we retain jurisdiction.

We have indeed held in other contexts that federal 

courts may exercise jurisdiction over certain collateral issues 

even after a case has been remanded to state court. For 

example, in Mints v. Education Testing Services, 99 F.3d 

1253 (3d Cir. 1996), we held that a district court had 

jurisdiction to grant attorneys’ fees associated with a motion 

to remand a matter to state court even after the district court 

had remanded the case to state court. In Mints, we cited to 

Cooter & Gell v. Hartmarx Corporation, 496 U.S. 384 (1990), 

wherein the Supreme Court determined that even after a 

plaintiff voluntarily dismissed an action, a district court could 

impose sanctions pursuant to Federal Rule of Civil Procedure 

11. Mints, 99 F.3d at 1258. Although “recogniz[ing] that 

Cooter & Gell is distinguishable because it did not implicate 

the special jurisdictional problems presented when a case is 

remanded to a state court,” we nevertheless held that the 

award of attorneys’ fees — like the imposition of sanctions, 
7

or the award of costs — “is collateral to the decision to 

remand and cannot affect the proceedings in the state court.” 

Id. 

Thus, our precedent establishes that federal courts may 

decide “collateral” issues after remand because such issues by 

definition “cannot affect” the progress of a case once it has 

been returned to state court. This accords with the Cooter & 

Gell Court’s characterization of collateral issues as those for 

which “determination[s] may be made after the principal suit 

has been terminated.” See Cooter & Gell, 496 U.S. at 396 

(identifying motions for costs or attorneys’ fees and motions 

to impose contempt sanctions as “collateral”). 

We hold that a motion to reconsider a remand order is 

not such a collateral issue. To begin with, we explicitly noted

in Mints that a motion to reconsider a remand order is distinct 

from a motion for attorneys’ fees, as far as the application of 

§ 1447(d) is concerned: 

While there is no doubt that under Hunt v. Acromed 

Corp., . . . , the district court should not have 

reconsidered the order of remand after the clerk of the 

district court sent the certified copy of the order to the 

clerk of the Superior Court, the principles underlying 

our opinion in that case are not applicable with respect 

to the . . . application [for attorneys’ fees]. 

Mints, 99 F.3d at 1257.

This interpretation of the collateral-issues exception is

reinforced by the Supreme Court’s holding in City of Waco v. 

United States Fidelity and Guaranty Co., 293 U.S. 140 
8

(1934). There, the Supreme Court held that the Court of 

Appeals retained jurisdiction to review an order by a district 

court to dismiss a party, even though the district court then 

remanded the case to state court because the party’s dismissal 

resulted in a lack of diversity jurisdiction. Id. at 143. The 

Lycoming defendants cite the Waco Court’s ruling as 

supportive of their position that this Court may entertain a 

post-remand challenge to a district court’s order. However, in 

our view, the Supreme Court’s decision in Waco underscores 

that once a case has been remanded for lack of subject-matter 

jurisdiction, that remand order cannot be undone. 

Significantly, the Waco Court explained that the appellate 

court’s “reversal [could] not affect the order of remand, but 

[would] at least, if the dismissal of the petitioner’s complaint 

was erroneous, remit the entire controversy, with the 

[dismissed company] still a party, to the state court for such 

further proceedings as may be in accordance with law.” Id. at 

143-44. The same cannot be said of the case before us now, 

as reversal of the District Court’s reconsideration order would 

necessarily affect the District Court’s decision to remand the 

case to state court. Indeed, returning this matter to federal 

court from state court is precisely what the motion for 

reconsideration sought to do, and it is what the Lycoming 

defendants seek on appeal as well.

The interpretation of Waco by other Courts of Appeals 

reinforces the distinction between the limited exception to 

§ 1447(d) and the rule the Lycoming defendants ask us to 

adopt in the instant case. In particular, the Court of Appeals 

for the Fourth Circuit concluded that implementing the socalled Waco exception requires: (1) that the “purportedly 

reviewable order . . . have a conclusive effect upon the 

parties’ substantive rights,” including “a preclusive effect 
9

upon the parties in subsequent proceedings”; and (2) that the 

reviewable decision is “able to be disaggregated from the 

remand order itself.” Palmer v. City Nat’l Bank of West Va., 

498 F.3d 236, 240-41 (4th Cir. 2007) (quotation marks 

omitted). Accordingly, the Palmer court held that it had 

jurisdiction to review dismissal of federal defendants who 

“were not subject to the remand order,” id. at 243, because 

they had ceased to be parties in the case. The Palmer court 

noted the critical fact that, “[w]ere we to reverse the dismissal 

of the federal defendants, the remand order would not be 

subverted.” Id. at 244 (quotation marks omitted).

In the instant case, it is impossible to disaggregate the 

order denying reconsideration from the remand order itself, 

despite the Lycoming defendants’ insistence that the two 

orders are distinct and therefore permit application of the 

Waco exception as applied in Palmer. The Lycoming 

defendants are correct that the District Court’s denial of the 

reconsideration motion “will have the preclusive effect of 

being functionally unreviewable in state court.” Defs. Br. 9.

But that is not the standard that this Court or the Palmer court 

— or, it appears, any Court of Appeals — applies when 

determining whether or not review of an order issued in a 

remanded case is permitted. As with the motion for 

reconsideration filed before the District Court, the very 

purpose of this appeal is to subvert the remand order by 

convincing this Court that diversity jurisdiction does, indeed, 

exist. Therefore, even if we were to adopt the procedure of 

the Fourth Circuit Court of Appeals for applying the Waco

exception, we would find that the instant case fails the Palmer

test because reversing the District Court’s denial of the 

motion for reconsideration would subvert the District Court’s 

remand order.
10

We note that the “functionally unreviewable” standard 

proposed by the Lycoming defendants is confounding 

because it is the express effect of § 1447(d) to ensure that a 

remand order based on lack of subject-matter jurisdiction is 

unreviewable — in state court or elsewhere. Our own

jurisprudence on § 1447(d) makes this clear:

The purpose of the rule is to prevent a 

party to a state lawsuit from using 

federal removal provisions and appeals 

as a tool to introduce substantial delay 

into a state action. . . . Without § 

1447(d), a party to a state action could 

remove the action to federal court, await 

remand, request reconsideration of the 

remand, appeal, request rehearing, and 

then file a petition for a writ of certiorari, 

all before being forced to return to state 

court several years later. . . . To avoid 

this delay, Congress has fashioned an 

exception to the general rule of review, 

and made a district court’s initial 

determination that removal was 

inappropriate a nonreviewable one. 

Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 

156-57 (3d Cir. 1998). Accordingly, we hold that we do not 

have jurisdiction to review an order denying a motion to 

reconsider a remand order.

III.
11

Whether or not the District Court itself had jurisdiction 

to reconsider the remand order depends upon establishing the 

moment at which jurisdiction was transferred from federal to 

state court. According to our precedent, the mailing of a 

certified copy of the remand order to state court is the event 

that formally transfers jurisdiction from a district court within 

this Circuit to a state court. Trans Penn Wax Corp. v. 

McCandless, 50 F.3d 217, 225 (3d Cir. 1995) (“The general 

rule is that a district court loses jurisdiction over a case once 

it has completed the remand by sending a certified copy of the 

remand order to state court.”).1In our view, the text of 28 

U.S.C. § 1447(c) establishes that jurisdiction remains with the 

district court until the jurisdiction-transferring event has 

occurred: “[a] certified copy of the order of remand shall be 

mailed by the clerk to the clerk of the State court. The State 

court may thereupon proceed with such case.” 28 U.S.C. 

§ 1447(c).2 Thus, in this case, the District Court had 

 

1

This Court decided Trans Penn Wax on a petition for writ of 

mandamus, not as an as-of-right appeal, because the remand 

order in that case was pursuant to 28 U.S.C. § 1367 — not 

§ 1447(c). Trans Penn Wax, 50 F.3d at 227. In Thermtron

Products, Inc. v. Hermansdorfer, the Supreme Court held that 

§ 1447(d) does not bar mandamus review of remand orders 

grounded in legal authority other than § 1447(c). 423 U.S. 

336, 345 (1976); see also James E. Pfander, Collateral 

Review of Remand Orders: Reasserting the Supervisory Role 

of the Supreme Court, 159 U. Pa. L. Rev. 493, 495-96 (2011)

(discussing the Supreme Court’s expansion of as-of-right 

review through the collateral order doctrine).

2

This accords with the rule recognized by the Court of 

Appeals for the Second Circuit as well. Shapiro v. Logistec 
12

jurisdiction to deny the defendants’ motion for 

reconsideration because, at the time when the District Court 

considered the motion for reconsideration, a certified copy of 

the remand order had not yet been mailed from the District 

Court Clerk to the state court. 

Our holding does not trouble that general rule, which, 

in addition to being “premised on . . . the language of § 

1447(c) and (d),” is also grounded in “the need to establish a 

determinable jurisdictional event after which the state court 

can exercise control over the case without fear of further 

federal interference.” Trans Penn Wax, 50 F.3d at 225. Here, 

that determinable jurisdictional event occurred after the 

District Court denied the motion to reconsider its remand 

order and before the Lycoming defendants filed their notice 

of appeal. Therefore, it was not until the certified copy of the 

remand order was mailed to state court that the mandate of 

 

USA, Inc., 412 F.3d 307, 312 (2d Cir. 2005) (“Section 

1447(c) . . . is not self-executing. . . . This provision creates 

legal significance in the mailing of a certified copy of the 

remand order in terms of determining the time at which the 

district court is divested of jurisdiction. . . . Thus, section 

1447(d) divests the district court of jurisdiction upon mailing 

of a remand order based on section 1447(c) grounds to state 

court.” (quotation marks omitted)). But see In re Lowe, 102 

F.3d 731, 734 (4th Cir. 1996) (“Subsection 1447(d) provides 

only that a remand ‘order’ may not be reviewed; it does not 

condition reviewability on any other event. Thus, the plain 

language of subsection (d) indicates that a court may not 

reconsider its decision to remand, as soon as it formalizes that 

decision in an ‘order.’”).
13

§ 1447(c) was fulfilled, triggering § 1447(d). At the moment 

of mailing — the jurisdictional event — the remand order 

became unreviewable “on appeal or otherwise.” A district 

court that seeks to preserve the ability to reconsider remand 

orders issued under § 1447(c), in order to guard against the 

occasional error in assessing subject-matter jurisdiction, may 

wish to bear in mind that jurisdiction is not transferred until 

the Clerk mails a copy of the certified remand order to state 

court. Once mailed, the order may not be reconsidered.

IV.

The plaintiffs request, finally, that we award them 

costs and counsel fees for responding to what they claim is a 

baseless appeal. Because, until now, this Court had not 

conclusively settled the question of whether appellate review 

of a motion to reconsider a remand order is permissible, we 

hold that the appeal was not “utterly without basis in law or in 

fact” and, accordingly, an award of damages and costs 

pursuant to Federal Rule of Appellate Procedure 38 is 

unwarranted. Quiroga v. Hasbro, Inc., 943 F.2d 346, 347 (3d 

Cir. 1991). Moreover, Rule 38 permits the award of “just 

damages and single or double costs to the appellee” “after a 

separately filed motion” has been made. Fed. R. App. P. 38. 

The plaintiffs failed to file such a motion. For these reasons, 

we will deny the award of fees and any damages to the 

plaintiffs under Rule 38. However, we will order that costs 

be taxed against the Lycoming defendants, pursuant to 

Federal Rule of Appellate Procedure 39(a)(1).

V.

For the foregoing reasons, we will grant the plaintiffs’

motion to dismiss this appeal. We will deny the request for 
14

attorneys’ fees, costs, and damages pursuant to Rule 38, and 

will order that costs be taxed against the Lycoming 

defendants pursuant to Rule 39(a)(1).