United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-2841

___________________________

Adam Vasseur

lllllllllllllllllllllPlaintiff - Appellee

v.

Matthew F. Sowell; Joe L. Jarvis, III

lllllllllllllllllllllDefendants

TEI Construction Services, Inc.

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court 

for the Western District of Missouri - Springfield

____________

Submitted: June 11, 2019

Filed: July 19, 2019

____________

Before GRUENDER, ARNOLD, and STRAS, Circuit Judges.

____________

GRUENDER, Circuit Judge. 
TEI Construction Services, Inc. (“TEI”) appeals the district court’s order

1

remanding the case to state court based on a lack of subject-matter jurisdiction. We

dismiss the appeal for lack of appellate jurisdiction.

In 2014, Adam Vasseur sued various defendants in Missouri state court

alleging injuries sustained in a car accident. Vasseur filed an amended petition

naming TEI as an additional defendant on November 17, 2017. TEI removed to the

United States District Court for the Western District of Missouri on January 9, 2018

based on diversity jurisdiction under 28 U.S.C. § 1332. Vasseur filed a motion to

remand on June 13, 2018, arguing that the removal had violated the one-year time

limit of 28 U.S.C. § 1446(c), which provides that “[a] case may not be removed . . .

on the basis of jurisdiction conferred by section 1332 more than 1 year after

commencement of the action, unlessthe district court findsthat the plaintiff has acted

in bad faith in order to prevent a defendant from removing the action.” The district

court granted Vasseur’s motion, holding that § 1446(c) is jurisdictional, that the

failure to remove the case within one year of the commencement ofthe original action

had therefore deprived the district court of subject-matter jurisdiction, and that the

case should be remanded to Missouri state court pursuant to 28 U.S.C. § 1447(c). 

TEI appeals. 

TEI argues that the remand order was “erroneous” because, under Missouri

law, an action commences against a particular party when that party is added to the

lawsuit, not when the original action was filed against other defendants. But under

28 U.S.C. § 1447(d), “[w]hen a district court remands a case based on a lack of

subject matter jurisdiction under section 1447(c), a court of appeals lacks jurisdiction

to entertain an appeal of the remand order” and “the remand order must stand whether

erroneous or not and whether review is sought by appeal or by extraordinary writ.” 

The Honorable Roseann A. Ketchmark, United States District Judge for the

1

Western District of Missouri. 

-2-
Roberts v. BJC Health Sys., 452 F.3d 737, 739 (8th Cir. 2006) (internal quotation

marks omitted). With this rule, “Congress has decided that in the ordinary case the

federal district court should have the final word on removal since at some point

litigation over the choice of a courtroom must end.” Arnold Crossroads, L.L.C. v.

Gander Mountain Co., 751 F.3d 935, 939 (8th Cir. 2014) (internal quotation marks

omitted). “This congressional judgment makes perfect sense for [t]he only thing that

is at stake is the forum that will hear a claim, and this issue is not so fundamental that

a second or third layer of judges must test its correctness.” Id. (internal quotation

marks omitted). 

To verify whether we lack appellate jurisdiction under § 1447(d), “[w]e are

required to determine by independent review the actual grounds for the district court’s

remand order.” Id. For this analysis, a district court’s own characterization of its

remand as based on a lack of subject-matter jurisdiction “is not dispositive” but

“remains influential.” Id. (internal quotation marks omitted). After all, a district

court’s remand order may “dress[] in jurisdictional clothing a patently

nonjurisdictional ground” such as “docket congestion.” Powerex Corp. v. Reliant

Energy Servs., Inc., 551 U.S. 224, 234 (2007). But such minimal review is “limited

to confirming” that the district court’s “characterization of its remand asresting upon

lack of subject-matter jurisdiction” was at least “colorable.” Id. 

Here, Vasseur admits that the district court characterized its remand as based

on a lack of subject-matter jurisdiction. He also conceded during oral argument that

the district court’s interpretation of § 1446(c)’s one-year limitation as jurisdictional

was “colorable.” After an independent review, we agree. In 2012, § 1446(c) was 2

amended to add a “bad faith” exception to the one-year time limit. A reasonable

Only the post-2012 version of § 1446(c) applies here because the present case

2

was commenced after January 6, 2012, the date the revisions went into effect. See

Federal CourtsJurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63,

§ 205, 125 Stat. 758, 764-65 (2011). 

-3-
argument can be made that it would only be necessary to add a “bad faith” exception

to the statute if § 1446(c)’s one-year limitation is jurisdictional. If the one-year time

limit of § 1446(c) is nonjurisdictional, it would already be “presumptively subject to

equitable tolling,” see United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1630 (2015)

(emphasisremoved), and the “bad faith” exception would be largely superfluous. We

are “reluctant to treat statutory terms as surplusage in any setting.” TRW Inc. v.

Andrews, 534 U.S. 19, 31 (2001). 

Admittedly, several courts disagree that the one-year limitation in the 2012

version of § 1446(c) is jurisdictional. See, e.g., Ehrenreich v. Black, 994 F. Supp. 2d

284, 288 (E.D.N.Y. 2014); Bank of Am., N.A. v. Lebreton, No. 14-0319, 2015 WL

2226266, at *23 (D.N.M. Apr. 20, 2015); Deutsch Bank Nat’l Co. v. Brader, No.

4:15-600, 2015 WL 9872070, n.11 (D.S.C. Oct. 28, 2015). We need not, however,

resolve this issue; it is “at least debatable.” See Powerex Corp. v. Reliant Energy

Servs., Inc., 551 U.S. 224, 234 (2007). We therefore cannot review the merits of this

remand order, colorably characterized as based on a lack of subject-matter

jurisdiction, and it must stand “whether erroneous or not.” BJC Health Sys., 452 F.3d

at 739. 

For the foregoing reasons, we dismiss the appeal for lack of appellate

jurisdiction. 

______________________________

-4-