HATCHETT, Chief Judge, dissenting:

Without the benefit of briefing or clear guidance from the

Supreme Court, a majority of this panel sua sponte abandons a

firmly rooted line of circuit authority holding that a district

court’s statutory-based remand order must be challenged by

Petition for Writ of Mandamus. In so doing, the majority (1)

contravenes the well-established rule that only the en banc court

or the Supreme Court may reverse prior panel decisions; (2)

alters the standard of review applicable in this case; and (3)

compounds the error of a decision that is otherwise wrong on the

merits. For these reasons, I respectfully dissent.

If the majority followed Congress’s clear command in 28

U.S.C. § 1447, we might save for another day our dispute

regarding circuit precedent, the proper method of appeal and the

standard of review. That is because section 1447(d) provides

that an “order remanding a case to the State court from which it

was removed is not reviewable on appeal or otherwise . . . .” 28

U.S.C. § 1447(d)(1994) (emphasis added). In other words, where

section 1447 is appropriately invoked, appellate review is

unavailable through mandamus or direct appeal. 

Unfortunately, the majority refuses to acknowledge that

section 1447 operates to bar any form of appellate review in this

case. The majority refuses to do so because it believes that the

district court’s remand order was not based on (1) a lack of

subject matter jurisdiction, or (2) a timely motion to remand for

a defect in the removal procedure. I respectfully suggest that
2

this belief is untenable on the record before us and rooted in a

flawed reading of section 1447.

With respect to subject matter jurisdiction, the majority

says that “the remand order in this case is clearly based on a

defect in the removal process.” Majority Op. at 5. To buttress

its claim, the majority cites portions of the record strung

together with ellipses. See Majority Op. at 5-6 n.2. 

The first two substantive sentences of the district court’s

order read as follows: “Section 1446(a), Title 28 of the United

States Code requires a party seeking removal to file a notice of

removal listing all grounds which support the federal court’s

jurisdiction. The removal procedures are strictly construed

because of this Court’s limited removal jurisdiction.” (Emphasis

added.) These two sentences alone raise the strong inference

that the district court’s concern in its remand order is

ultimately jurisdictional and not procedural in nature. Cf.

Ariail Drug Co., Inc. v. Recomm Int’l Display, Ltd., ___ F.3d

___, ___, No. 96-6570, slip op. at 3562-63 (11th Cir. Sept. 3,

1997) (indicating that removal jurisdiction is a species of

subject matter jurisdiction); see also BJT, Inc. v. Molson

Breweries USA, Inc., 848 F. Supp. 54, 56 (E.D.N.C. 1994) (“a

federal court’s removal jurisdiction is a form of subject matter

jurisdiction”); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194-

95 (9th Cir. 1988) (removal of a case from state court to federal
 1 The Ariail Drug panel characterizes removal

jurisdiction as a hybrid form of subject matter jurisdiction,

because a lack of removal jurisdiction is considered in some

contexts a procedural defect. __ F.3d at ___ n.5, slip op. at

3563 n.5. Compare In re Ocean Marine Mut. Protection & Indem.

Ass’n, Ltd., 3 F.3d 353, 356 (11th Cir. 1993) (“Failure to comply

with § 1446(a) and (b) constitutes a defect in removal procedure

within the meaning of § 1447(c).”), and In re Fed. Sav. & Loan

Ins. Co., 837 F.2d 432, 434-35 (11th Cir. 1988) (stating that the

“authority” of the Federal Deposit Insurance Corporation to bring

a case to federal court was, like a private litigant’s authority,

once subject to limitations of 28 U.S.C. §§ 1331 and 1441, and

stating that the express consent of all defendants is a

“condition precedent to removal” pursuant to 28 U.S.C. §

1441(a)”).

I am willing to accept, given our case law, that violations

of 28 U.S.C. § 1446 fall in the category of procedural defects

for purposes of determining reviewability under 28 U.S.C. §

1447(c). Indeed, from a purely textual point it makes perfect

sense to think that section 1447(c)’s use of the phrase “defect

in removal procedure” refers to the requirements of section 1446,

which is entitled “procedure for removal.”

It does not follow, however, that failures to comply with

the requirements of 28 U.S.C. § 1441, which is entitled “actions

removable generally,” are also defects in removal procedure for

purposes of section 1447(c). Section 1441 is more properly

viewed as a specialized subject matter jurisdiction statute for

defendants, akin to 28 U.S.C. § 1331, which allows a plaintiff to

bring a suit in federal court if the claims therein arise under

federal law. This is so because section 1441 confers a limited

statutory right on defendants to remove certain cases to federal

court, provided specific preconditions are met -- conditions such

as consent among all defendants under section 1441(a), and

diversity of citizenship under section 1441(b). Given the

jurisdictional nature of section 1441, I believe Congress

probably intended for removal that is defective under section

1441 to be cognizable under section 1447(c)’s provision relating

to subject matter jurisdiction. See Charles Everingham IV,

Removal, Waiver, and the Myth of Unreviewable Remand in the Fifth

Circuit, 45 Baylor L. Rev. 723, 753 (1993) (“Based on the text of

the removal statutes, the legislative history, and the

Congressional policies behind removal jurisdiction, Congress

probably meant for a defect in removal jurisdiction to deprive

the court of subject matter jurisdiction.”); cf. In re Fed. Sav.

& Loan Ins. Co., 837 F.2d at 435; Emrich, 846 F.2d at 1194 n.2. 

3

court pursuant to section 1441 is a question of federal subject

matter jurisdiction).1
 Even if the view I express is wrong, the critical issue in

this case remains whether the district court viewed removal

jurisdiction as a form of subject matter jurisdiction when it

ordered a remand. If it did, the remand order in this case is

unreviewable, even if also incorrect. See In re Decorator

Indus., Inc., 980 F.2d 1371, 1374 (11th Cir. 1992) (“We are

prohibited from reviewing a remand order for lack of jurisdiction

even when the district court’s determination is clearly

erroneous.”). For the reasons discussed in the main text, I am

firmly convinced that the district court viewed its remand order

as a subject matter-based jurisdictional order.

4

The district court’s order follows the above-quoted

sentences with a citation reference to two prior cases that this

particular district court judge authored. The first case is

Senter v. Sears, Roebuck & Co., 712 F. Supp. 179 (S.D. Fla.

1989). In Senter, Sears & Roebuck filed a motion for

reconsideration after the district court remanded a case that

Sears & Roebuck had removed to federal court. Sears & Roebuck’s

initial petition for removal was technically defective in some

respects and the district court indicated that these defects

constituted “one of the reasons why this court found in its

previous order that it lacked jurisdiction over this matter.” 

712 F. Supp. at 179. The Senter court went on to state: 

When a defendant moves a federal district court to

grant a removal petition, the court must make an

initial inquiry whether it has subject matter

jurisdiction over the cause. In making this

determination, the court must consider the procedural

posture of the case at that time including the status

of all parties and the action of the state court in

disposing of the matter. For example, in this case,

the defendant’s act of including a third-party

complaint with the notice of removal gave the

appearance that there was an additional party to this

suit, but it was unclear if this party had been joined

in the action by the state court.
5

In granting the petition for removal, the federal court

must make this important initial decision with

certainty so as not to unduly interfere with the

jurisdiction of the state courts . . . . 

712 F. Supp. at 179-80 (emphasis added). The second case cited

in the district court’s order, Cury v. Royal Palm Savings Ass’n,

713 F. Supp. 388, 389 (S.D. Fla. 1989), contains language to the

same effect.

In essence, these cases reflect a view that the district

court’s ability to make a proper determination of subject matter

jurisdiction is often inextricably linked to the formal contents

of the removing party’s petition for removal. The cited cases

also appear to endorse a categorical view that a district court

cannot determine subject matter jurisdiction with certainty where

a petition for removal is defective. Whether these views are

correct or not in every case is of no real moment for present

purposes, because reviewability under section 1447 turns on the

district court’s intent when making a remand determination, not

on the actual accuracy or wisdom of the determination. See In re

Decorator Indus., Inc., 980 F.2d at 1374; In re Amoco Petroleum,

964 F.2d at 713 (“A search for error is precisely what § 1447(d)

forbids.”). If the district court decided that it could not

ascertain subject matter jurisdiction in this case with certainty

because of a defective petition for removal, our tribunal has no

authority to review or second-guess that decision. 28 U.S.C. §

1447(d) (1994).

If any doubt remains that the district court intended to

make a jurisdictional-based remand order, the remaining
6

paragraphs of the district court order dispel that doubt. In the

paragraph immediately following the sentence regarding the

“[c]ourt’s limited removal jurisdiction,” the district court’s

order states that “all defendants must join the petition [for

removal] even if the basis for removal is a federal question.” 

The district court then cites Darras v. Transworld Airlines, 617

F. Supp. 1068 (N.D. Ill. 1985), an opinion where the district

court sua sponte remanded a Warsaw Convention Treaty-based case

to a state court because one of the defendants did not join in

the removal petition, rendering the case “removed improvidently

and without jurisdiction.” 617 F. Supp. at 1069 (emphasis

added).

After then proceeding to describe several defects in the

instant petition for removal -- including the lack of an

allegation that all the defendants even consented to removal (as

required in section 1441(a)) -- the district court concluded its

order as follows:

Accordingly, having reviewed the amended notice of

removal, the record, and being otherwise duly advised,

it is hereby:

ORDERED AND ADJUDGED that this cause be REMANDED

to Circuit Court, Palm Beach County, Florida, and

DISMISSED from this Court’s Federal docket. It is

further hereby:

ORDERED AND ADJUDGED that because this Court did

not have jurisdiction over this cause, any and all

previously filed Orders of this Court are VACATED.

(Emphasis added.) The majority attributes no significance to

this language. Instead, the majority focuses on the district
7

court’s preceding discussion of various defects in the petition

for removal and confidently concludes that “the district court

remanded the case to state court for the failure of all

defendants to timely join in or consent to a petition for

removal.” See Majority Op. at 6 n.3.

If the district court intended to remand this case because

of the failure of all the defendants to timely join in a petition

for removal, one would expect the conclusion of the district

court’s order to say as much. We know, however, that the

district court said no such thing. Indeed, some of the words the

majority uses to describe the district court’s order never even

appear in the order’s text: not in the conclusion, and not in the

preceding discussion. The district court simply ends its order

with the statement that “this Court did not have jurisdiction

over this cause.” (Emphasis added.)

I would take this unambiguous statement for what it is -- an

unreviewable decision to remand for lack of subject matter

jurisdiction. That decision may have been predicated in part on

the deficient nature of the petition for removal in this case,

but that fact alone does not alter the jurisdictional nature of

the district court’s ultimate conclusion, especially in light of

the repeated references to jurisdictional concerns throughout the

entire district court order. 

The majority also errs in establishing a hard and fast rule

that section 1447 does not bar appellate review and relief

whenever a district court remands a case sua sponte shortly after
8

the expiration of the thirty-day period within which the parties

must file motions for remands based on procedural defects. The

policy behind section 1447's thirty-day motions period, as

explained in the Fifth Circuit’s Loyd opinion, is to avoid

shuttling cases between state and federal courts based on purely

procedural defects when both state and federal courts have

jurisdiction over the relevant claims. FDIC v. Loyd, 955 F.2d

316, 322 (5th Cir. 1992). Section 1447’s thirty-day motions

period also operates to prevent the parties from engaging in

forum shopping once the litigation process has commenced in

earnest. See generally Charles Everingham IV, Removal, Waiver,

and the Myth of Unreviewable Remand in the Fifth Circuit, 45

Baylor L. Rev. 723 (1993) (discussing, inter alia, policy goals

Congress sought to advance in section 1447).

The rule section 1447(c) establishes is not a rigid and

absolute rule. The plain language of section 1447(c) only

requires the parties to file a motion noting a defect in the

removal process within thirty days. It does not require the

district court to rule on the motion within thirty days; nor does

it explicitly restrict the supervisory authority and discretion

of a district court to act sua sponte or grant equitable relief

in connection with section 1447(c); nor does it unequivocally

guarantee a federal forum to the parties once thirty days have

elapsed. Section 1447(c) is thus not a comprehensive measure

covering all contingencies, but a mechanism designed to prod the

parties to inform each other in a prompt way -- before litigation
9

commences in earnest -- if any of them has an objection to

litigation within the extant forum.

In this case, Edwards clearly placed Bethesda Hospital and

the other petitioners on notice that she objected to the forum(s)

of the litigation. She did so with motions for consolidation and

extension of time, which she filed on Friday, June 13, 1996 --

the twenty-seventh day following Bethesda’s notice of removal. 

At that time, the parties had not commenced any litigation on the

merits of the claims at issue. The district court’s ruling a

week later (and only four days after the thirty-day time limit

expired) thus does not appear to have upset any truly settled

expectations the petitioners had of being in a particular forum -

- after all, the petitioners were not even all properly before

the same federal judge at the time. Indeed, if the district

court had granted Edwards’s motion for consolidation and invoked

the doctrine of equitable tolling to extend the thirty-day

motions period, cf. Roe v. O’Donohue, 38 F.3d 298, 302 (7th Cir.

1994) (assuming that the “30-day period [of section 1447(c)] is

subject to equitable tolling and estoppel”), the petitioners

might have quickly found themselves faced with a proper motion

from Edwards to remand the case to state court on procedural

and/or jurisdictional grounds. Given these facts, and the fact

that shuttling -- the principal evil section 1447 seeks to

eliminate -- will again occur here if review is permitted and

relief granted, I cannot agree that the district court’s decision
10

in this case is of a type we should find cognizable for review

and relief.

I believe that controlling Eleventh Circuit precedent

indicates that the proper standard of review for relief in a case

such as this is the standard applicable to petitions for a writ

of mandamus. See, e.g., New v. Sports & Recreation Inc., 114

F.3d 1092, 1094 n.3 (11th Cir. 1997) (“A writ of mandamus is the

proper means by which a party may challenge a remand order.”);

Loftin v. Rush, 767 F.2d 800, 802 n.3 (11th Cir. 1985) (“The

proper way to challenge a remand is by way of writ of mandamus,

not appeal.”).

Under this standard, an applicant for a writ of mandamus

must establish a “clear abuse of discretion or [conduct amounting

to an] usurpation of power” in order to establish a right to

relief. In re Lopez-Lukis, 113 F.3d 1187, 1187 (11th Cir. 1997);

In re Amoco Petroleum Additives Co., 964 F.2d 706, 713 (7th Cir.

1992). As we recently observed in In re Lopez-Lukis, 113 F.3d at

1187-88, “mandamus is an extraordinary remedy . . . [and] the

petitioners have the burden of showing that their right to

issuance of the writ is 'clear and indisputable.'” Moreover, as

our colleagues in the Seventh Circuit have noted, “mandamus is

not the appropriate means to resolve doubtful issues of procedure

or statutory construction.” In re Amoco Petroleum, 964 F.2d at

713. Since, in my view, the majority’s statutory interpretation

of section 1447(c)’s purview is not indisputably correct based on

the plain language of that statute, it is imprudent for us to
11

find a right of review and relief for the petitioners in this

case.

The majority avoids this issue altogether, claiming that the

Supreme Court overruled Loftin and its progeny in Quackenbush v.

Allstate Ins. Co., 116 S. Ct. 1712 (1996). According to the

majority, Quackenbush holds “that a district court’s order to

remand a case to state court is a final judgment that can be

reviewed on direct appeal.” Majority Op. at 2 (citing

Quackenbush, 116 S. Ct. at 1720.). I respectfully suggest that

this interpretation of Quackenbush overstates that opinion’s

holding. The Supreme Court’s opinion does not consider the

question of whether all remand orders can be reviewed on direct

appeal. To the contrary, the Supreme Court’s opinion determined

only that an abstention-based remand order is appealable under 28

U.S.C. § 1291. See Quackenbush, 116 S. Ct. at 1717 (“In this

case, we consider whether an abstention-based remand order is

appealable as a final order under 28 U.S.C. § 1291"); see also In

re United States Brass Corp., 110 F.3d 1261, 1267 (7th Cir. 1997)

(following Quackenbush, “[a]n order of abstention that takes the

form of a dismissal or a remand, rather than merely of a stay of

the proceedings before the district court is an appealable final

decision”). While it is true that some circuits have allowed

statutory-based remand order challenges to proceed through direct

appeal in the wake of Quackenbush, other circuits have continued

to adhere to their prior practice of reviewing statutory-based

remand orders through mandamus. Compare Gaming Corp. of Am. v.
12

Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir. 1996) (direct

appeal), with In re Excel Corp., 106 F.3d 1197, 1200-01 (5th Cir.

1997) (mandamus).

Given the well-established rule in this circuit that only

the Supreme Court or the court of appeals sitting en banc may

overrule prior panel decisions -- as well as the fact that

neither party briefed or raised the issue -- I respectfully

believe the majority oversteps its bounds when it expands

Quackenbush beyond its abstention-based context to hold that

Loftin and its progeny are no longer good law. But see Ariail

Drug __ F.3d at __, slip op. at 3562 (mandate pending) (similarly

suggesting in obiter dictum that Quackenbush overrules Loftin). 

Loftin is precisely on point and represents well-established law,

followed in this circuit as recently as this year. See New v.

Sports & Recreation, Inc., 114 F.3d at 1094 n.3. Quackenbush,

while controlling on the issue of abstention-based remand orders,

has been read narrowly in at least one other circuit, and no

party to this case even cites it in its brief. It is thus

neither necessary nor prudent for the majority to disregard

established precedent in this case to convert petitioners’s writ

of mandamus application into a direct appeal.

Because the majority makes an unwarranted break with

controlling circuit precedent, employs an erroneous standard of

review and reaches a result that appears wrong to me in every

regard, I respectfully dissent.