United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2007 Decided January 18, 2008

No. 06-7193

DAEVON BARKSDALE,

APPELLEE

v.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 06cv01059)

Bruce P. Heppen argued the cause for appellant. With him

on the briefs were Carol B. O’Keeffe, Mark F. Sullivan, and

Frederic H. Schuster.

Richard F. Johns, pro hac vice, argued the cause for

appellee. With him on the brief was Hubert M. Schlosberg.

Before: GINSBURG, Chief Judge, GARLAND, Circuit Judge,

and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GINSBURG.
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GINSBURG, Chief Judge: The Washington Metropolitan

Area Transit Authority (WMATA) appeals an order of the

district court remanding this case back to the Superior Court of

the District of Columbia, from which it had been removed at the

instance of WMATA. We have jurisdiction to hear WMATA’s

appeal pursuant to 28 U.S.C. § 1291. We hold the district court

lacked the power to remand this case, and we return it to the

district court for further proceedings.

I. Background

Created by an Interstate Compact, WMATA operates the

mass transit system serving the District of Columbia and

contiguous suburban areas of Maryland and Virginia. Pub. L.

No. 89-774, 80 Stat. 1324 (1966) (codified at D.C. Code § 9-

1107.01). Barksdale claims he was injured as a result of

WMATA’s negligence while riding an escalator in a WMATA

subway station. 

Barksdale filed his claim in the Superior Court of the

District of Columbia, from which WMATA removed it to the

district court pursuant to section 81 of the Compact, which

provides: 

The United States District Courts shall have original

jurisdiction, concurrent with the courts of Maryland,

Virginia, and the District of Columbia, of all actions

brought by or against [WMATA] .... Any such action

initiated in a State or District of Columbia court shall be

removable to the appropriate United States District Court in

the manner provided by 28 U.S.C. § 1446.
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*

 As it turns out, counsel was a member of the district court

bar and Superior Court also requires electronic filing.

D.C. Code § 9-1107.01. Barksdale’s counsel, claiming he was

not admitted to the bar of the district court and lacked the

technology needed to comply with the district court’s mandatory

electronic case filing procedures, asked the district court to

remand the case to Superior Court.* The district court obliged

and WMATA then appealed the remand order. 

II. Analysis

WMATA contends the district court had no power to

remand this case or, if it had, then it abused that power. Before

reaching the merits of WMATA’s case, we address Barksdale’s

objection that we do not have jurisdiction to hear this appeal.

See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711 (1996)

(“We first consider whether the Court of Appeals had

jurisdiction to hear Allstate’s appeal” of the district court order

remanding the case to state court).

A. Appellate Jurisdiction

Barksdale contends we lack jurisdiction under 28 U.S.C. §

1291 because the remand order is not a “final” order and, in any

event, 28 U.S.C. § 1447(d) specifically bars review of “[a]n

order remanding the case to the State court from which it was

removed.” We hold that neither statute bars the present appeal.

Generally, this court has jurisdiction to review an order of

the district court only if it is a final order. 28 U.S.C. § 1291.

Obviously, the order remanding this case to Superior Court did
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not terminate the case, but it is nonetheless a final order for

purposes of § 1291 under the “collateral order” doctrine of

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47

(1949). As the Supreme Court has explained that doctrine, an

order is final and reviewable if it “[1] conclusively determine[s]

the disputed question, [2] resolve[s] an important issue

completely separate from the merits of the action, and [3] [will]

be effectively unreviewable on appeal from a final judgment.”

Will v. Hallock, 546 U.S. 345, 349 (2006) (quotation marks

omitted) (bracketed numbers in original). 

Barksdale argues the collateral order doctrine does not

apply to the present remand order because “the issue presented

in this case is not one of a serious and unsettled nature ...,

WMATA routinely litigates these types of matters in the

Superior Court ..., [and] the District Court’s decision to remand

was merely an exercise of discretion.” This argument is

foreclosed by Quackenbush. There the Supreme Court held that

a remand order (issued in that case pursuant to the doctrine of

Burford abstention) was a collateral order appealable pursuant

to § 1291. The Court explained that the remand order 

puts the litigants in this case effectively out of court[;] ...

conclusively determines an issue that is separate from the

merits, namely, the question whether the federal court

should decline to exercise its jurisdiction in the interest of

comity and federalism[;] ... [addresses the right to litigate in

federal court, which is] sufficiently important to warrant an

immediate appeal[;] ... [and] will not be subsumed in any

other appealable order entered by the District Court.

Quackenbush, 517 U.S. at 714. In all four of those respects, the

remand order at issue here is indistinguishable from the remand
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order at issue in Quackenbush. We conclude, therefore, we have

jurisdiction to hear this appeal under § 1291.

Barksdale contends further that, even if the remand order

would otherwise be appealable as far as § 1291 is concerned,

review of the present order is nonetheless barred by 28 U.S.C.

§ 1447(d). That section provides in pertinent part: “An order

remanding a case to the State court from which it was removed

is not reviewable on appeal or otherwise.” 

The Supreme Court has held § 1447(d) bars review “only

[of] remand orders issued under § 1447(c) and invoking the

[mandatory] grounds specified therein,” Osborn v. Haley, 127

S. Ct. 881, 893 (2007) (second alteration in original), namely, “a

defect in removal procedure or lack of subject matter

jurisdiction,” Kircher v. Putnam Funds Trust, 126 S. Ct. 2145,

2153 (2006). This is not such a case; Barksdale did not advance

and the district court did not purport to act upon either of the

grounds specified in § 1447(c). Rather, the district court

purported to exercise its discretion in remanding this case for the

convenience of Barksdale’s counsel. This case is thus like

Thermtron Products, Inc. v. Hermansdorfer, in which the

Supreme Court held § 1447(d) did not bar review of an order of

remand based upon “the District Court’s heavy docket,” which

the district court thought “would unjustly delay” the trial. 423

U.S. 336, 344-46, 352 (1976). Hence, we hold § 1447(d) does

not bar the present appeal, and we turn to the merits of the

remand order under review.

B. District Court Authority

WMATA advances two arguments that the district court

erred by remanding this case to Superior Court: First, the court
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was not authorized to remand a case on the ground that Superior

Court would be a more congenial forum for Barksdale’s

counsel; second, section 81 of the Compact grants WMATA

“unreviewable discretion to proceed in a federal forum,” as a

result of which “the federal courts are without authority to

remand a case to state court over WMATA’s objections.” We

do not reach WMATA’s second point because we agree with its

first point – although not with all its analysis; the district court

simply does not have the power to remand a case to a state or

D.C. court for the convenience of counsel. 

WMATA, quoting Thermtron, 423 U.S. at 342, argues that

a “case removed under § 1441 ‘may be remanded only in

accordance with § 1447.’” Because § 1447 recognizes only

procedural defect and lack of subject matter jurisdiction as

grounds for remand and, the argument goes, neither ground was

applicable in this case, the remand was improper.

Thermtron’s reading of § 1447 is not by itself dispositive,

however, of the district court’s authority. Subsequent decisions

of the Supreme Court establish that a district court also may

remand a case on certain grounds not expressly authorized by

the statute. In Carnegie-Mellon University v. Cohill, the Court

held “when a [district] court has discretionary jurisdiction over

a removed [pendant] state-law claim and the court chooses not

to exercise its jurisdiction, remand is an appropriate alternative”

to dismissal because it would not make sense to bar, and neither

§ 1447 nor any other statute expressly bars, a district court from

remanding a claim on a ground upon which it might instead

have dismissed the claim. 484 U.S. 343, 353-57 (1988)

(explaining the district court in Thermtron “could not properly

have eliminated the case from its docket, whether by a remand

or by a dismissal. ... [A]n entirely different situation is presented
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when the district court has clear power to decline to exercise

jurisdiction.”). Similarly, in Quackenbush the Court held a

district court may remand a case if it might instead dismiss it

based upon “abstention principles.” 517 U.S. at 730-31.

Considering Thermtron together with Carnegie-Mellon and

Quackenbush, we conclude the district court lacked the power

to remand this case. The district court relied neither on a ground

specified in § 1447 nor on any ground upon which it might

instead have dismissed the case. Rather, the district court

remanded the case simply because Barksdale’s counsel said

Superior Court would be a more congenial forum for him, much

as the district court in Thermtron had remanded that case merely

“because the district court consider[ed] itself too busy to try it.”

423 U.S. at 344. Hence, we hold the district court erred in

remanding Barksdale’s case to Superior Court.

III. Conclusion

In sum, we have jurisdiction to hear this appeal of the

district court’s remand order pursuant to 28 U.S.C. § 1291 and

the collateral order doctrine; nothing in 28 U.S.C. § 1447(d), as

interpreted in Thermtron, bars our review; and the district court

lacks the power to remand a case for the convenience of counsel.

Accordingly, we reverse the order of remand and return this case

to the district court for further proceedings.

So ordered.