(Slip Opinion) OCTOBER TERM, 2005 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

KIRCHER ET AL. v. PUTNAM FUNDS TRUST ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SEVENTH CIRCUIT 

No. 05–409. Argued April 24, 2006—Decided June 15, 2006 

The Securities Litigation Uniform Standards Act of 1998 (Act) specifies 

that private state-law “covered” class actions alleging untruth or manipulation “in connection with the purchase or sale” of a “covered” security may not “be maintained in any State or Federal court,” 15

U. S. C. §77p(b), and authorizes removal to federal district court of 

“[a]ny covered class action brought in any State court involving a 

covered security, as set forth in subsection (b),” §77p(c). “A ‘covered 

class action’ is a lawsuit in which damages are sought on behalf of 

more than 50 people. A ‘covered security’ is one traded nationally

and listed on a regulated national exchange.” Merrill Lynch, Pierce, 

Fenner & Smith Inc. v. Dabit, 547 U. S. ___, ___. 

Petitioners, mutual fund investors, filed separate state-court actions, each seeking to assert state-law claims on behalf of a class of 

investors allegedly injured by devaluation of their holdings by respondent mutual funds. The funds filed notices of removal in each 

case stating, among other things, that the actions were removable 

under and precluded by the Act. Once removed, however, the Federal 

District Court remanded each case to state court on the ground that

it lacked subject-matter jurisdiction on removal because the Act did

not preclude the investors’ claims. Since they were said to have been 

injured as “holders” of mutual fund shares, not purchasers or sellers, 

the court reasoned, their claims did not satisfy §77p(b)’s “in connection with the purchase or sale” requirement, and the claims could 

therefore proceed in state court. The Seventh Circuit acknowledged

that 28 U. S. C. §1447(d) bars review of district court orders remanding removed cases for lack of subject-matter jurisdiction, but decided

that the District Court had the last word neither on the characterization of its decision as jurisdictional nor on the correctness of its con-
2 KIRCHER v. PUTNAM FUNDS TRUST 

Syllabus 

clusion that remand was required. The appeals court considered all 

covered class actions involving covered securities, whether precluded

or not, to be removable under the Act, and therefore thought the preclusion issue distinct from the jurisdictional issue whether the case 

belonged in federal court at all. It held that orders remanding “properly removed” suits as not precluded are substantive and unaffected by 

§1447(d), and therefore reviewable. Proposing that the Act reserves to

the Federal Judiciary the exclusive authority to make the preclusion

decision, the court said that treating remand orders in this context as 

immunized from appeal by §1447(d) would mean that a major substantive issue would escape review, since it would not be open to

resolution in the state court subject to review by this Court. The Seventh Circuit subsequently consolidated the funds’ appeals and decided, on the merits, that the Act precludes the investors’ claims. 

Held: Orders remanding for want of preclusion under the Act are subject to §1447(d) and its general rule of nonappealability. Pp. 5–14.

(a) Section 1447(d), which states that an “order remanding a case to

the State court from which it was removed is not reviewable on appeal,” applies to all remands based on the grounds specified in 

§1447(c), including lack of subject-matter jurisdiction. Thermtron 

Products, Inc. v. Hermansdorfer, 423 U. S. 336, 343–345. It applies

equally to cases removed under the general removal statute, §1441,

and to those removed under other provisions, see Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 128, and its force is not subject to

any statutory exception that might cover this case. The District Court 

said that it was remanding for lack of jurisdiction, an unreviewable

ground. Where a remand order is based on one of §1447(c)’s grounds, 

review is unavailable no matter how plain the legal error in ordering 

the remand. Briscoe v. Bell, 432 U. S. 404, 413, n. 13. The Seventh 

Circuit did not overlook cases like Briscoe, but relied instead on cases 

such as Kontrick v. Ryan, 540 U. S. 443, which observed that some 

rulings loosely called jurisdictional are patently not jurisdictional in 

the strict sense. Viewing this as such a case, the appeals court understood the District Court’s preclusion decision to be substantive,

not jurisdictional, and consequently subject to review. But the District Court was correct in understanding its remand order to be dictated by a finding that it lacked removal jurisdiction. Section 77p(c)’s 

authorization for removal, on which district-court jurisdiction depends, is confined to cases “set forth in subsection (b),” i.e., those with 

claims of untruth or manipulation. That phrase immediately follows 

the §77p(c) language describing removable cases as covered class actions involving covered securities, and the language has no apparent

function unless it limits removal to covered class actions involving

claims like untruth or deception. Legislative history tends to show 
Cite as: 547 U. S. ____ (2006) 3 

Syllabus 

that this was just what Congress understood. The preclusion determination is jurisdictional, as is the order implementing it. Pp. 5–11.

(b) The Seventh Circuit’s reading was in part motivated by the 

court’s erroneous assumption that the Act gives federal courts exclusive jurisdiction to decide the preclusion issue. A covered action is 

removable if it is precluded, and a defendant can enlist the Federal

Judiciary to decide preclusion, but he can elect to leave the case

where the plaintiff filed it and trust the state court to make the preclusion determination. What a state court could do in the first place 

it may also do on remand; here, the funds can ask for dismissal on

preclusion grounds when they return to state court. Collateral estoppel should be no bar to such a revisitation, given that §1447(d)

prevents the funds from appealing the District Court’s decision. 

While the state court cannot review the decision to remand in an appellate way, it is free to reject the remanding court’s reasoning. Id., 

at 583. There is no reason to doubt that the state court in this litigation will duly apply Dabit’s holding that holder claims are embraced

by §77p(b), but this Court can review any claim of error on that point.

Pp. 11–14. 

403 F. 3d 478, vacated and remanded. 

SOUTER, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and STEVENS, KENNEDY, THOMAS, GINSBURG, BREYER, and ALITO, 

JJ., joined, and in which SCALIA, J., joined as to Parts I, III, and IV. 

SCALIA, J., filed an opinion concurring in part and concurring in the 

judgment. 
_________________ 

_________________ 

Cite as: 547 U. S. ____ (2006) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 05–409 

CARL KIRCHER, ET AL., PETITIONERS v. PUTNAM 

FUNDS TRUST ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 15, 2006] 

JUSTICE SOUTER delivered the opinion of the Court. 

Title 28 U. S. C. §1447(d) limits appellate review of a

district court order remanding a case from federal to state 

court. The question here is whether an order remanding a 

case removed under the Securities Litigation Uniform

Standards Act of 1998 is appealable, notwithstanding 

§1447(d). We hold it is not. 

I 

The Private Securities Litigation Reform Act of 1995 

(Reform Act), 109 Stat. 737, targeted “perceived abuses of

the class-action vehicle in litigation involving nationally

traded securities,” Merrill Lynch, Pierce, Fenner & Smith 

Inc. v. Dabit, 547 U. S. ___, ___ (2006) (slip op., at 8), and 

put limits on federal securities class actions. But Congress

soon discovered that “[r]ather than face the obstacles set in

their path by the Reform Act, plaintiffs and their representatives [were] bringing class actions under state law, often 

in state court,” id., at ___ (slip op., at 9). To block this 

bypass of the Reform Act, Congress enacted the Securities 

Litigation Uniform Standards Act of 1998 (Act), 112 Stat. 

3227; see Dabit, supra, at ___ (slip op., at 8–10). 
2 KIRCHER v. PUTNAM FUNDS TRUST 

Opinion of the Court 

The Act has a preclusion provision1 and a removal provision2: it provides that private state-law “covered” class 

actions alleging untruth or manipulation in connection 

with the purchase or sale of a “covered” security may not

“be maintained in any State or Federal court,” 112 Stat. 

3228 (codified at 15 U. S. C. §77p(b)),3 and it authorizes 

removal to federal district court of “[a]ny covered class 

action brought in any State court involving a covered

security, as set forth in subsection (b),” 112 Stat. 3228

(codified at §77p(c)). “A ‘covered class action’ is a lawsuit 

in which damages are sought on behalf of more than 50

people. A ‘covered security’ is one traded nationally and 

listed on a regulated national exchange.” Dabit, supra, at 

—————— 

1 “No covered class action based upon the statutory or common law of

any State or subdivision thereof may be maintained in any State or

Federal court by any private party alleging— 

“(1) an untrue statement or omission of a material fact in connection 

with the purchase or sale of a covered security; or

“(2) that the defendant used or employed any manipulative or deceptive device or contrivance in connection with the purchase or sale of a

covered security.” 112 Stat. 3228 (codified at 15 U. S. C. §77p(b)).

The preclusion provision is often called a preemption provision; the 

Act, however, does not itself displace state law with federal law but 

makes some state-law claims nonactionable through the class action

device in federal as well as state court. See Merrill Lynch, Pierce, 

Fenner & Smith Inc. v. Dabit, 547 U. S. ___, ___ (2006) (slip op., at 15)

(“The Act does not deny any individual plaintiff, or indeed any group of 

fewer than 50 plaintiffs, the right to enforce any state-law cause of 

action that may exist”). 2 “Any covered class action brought in any State court involving a

covered security, as set forth in subsection (b) of this section, shall be

removable to the Federal district court for the district in which the 

action is pending, and shall be subject to subsection (b) of this section.”

112 Stat. 3228 (codified at 15 U. S. C. §77p(c)). 3The Act amends “in substantially identical ways,” Dabit, supra, at 

___, n. 6 (slip op., at 10, n. 6), both the Securities Act of 1933, 48 Stat.

74, and the Securities Exchange Act of 1934, 48 Stat. 881. For the sake 

of simplicity, the Seventh Circuit relied exclusively on the amendments 

to the Securities Act of 1933, and for ease of reference we will do the 

same. 
Cite as: 547 U. S. ____ (2006) 3 

Opinion of the Court 

___ (slip op., at 10–11) (footnotes omitted). 

Petitioners are eight groups of investors holding mutual 

fund shares, who filed separate actions in Illinois state 

courts, each group seeking to represent a class of investors

allegedly injured by devaluation of their holdings by respondents (mutual funds, investment advisors, and an

insurance company) (hereinafter collectively the funds).4 

The eight complaints asserted only state-law claims, such 

as negligence and breach of fiduciary duty. 

The funds filed notices of removal to federal district 

court in each case stating, among other things, that the 

actions were removable under and precluded by the Act. 

Once in the District Court, however, the investors argued

that the cases should be remanded for lack of subject 

matter jurisdiction, and in separate orders the District 

Court for the Southern District of Illinois remanded each 

case to state court on the ground that the District Court 

lacked subject matter jurisdiction on removal because the 

Act did not preclude the investors’ claims. Since the investors were said to have been injured as “holders” of

mutual fund shares, not purchasers or sellers, the District

Court reasoned, their claims did not satisfy the “in connection with the purchase or sale” requirement of the Act’s

preclusion provision, §77p(b),5 and the claims could therefore proceed in state court. The District Court did not 

decide whether the claims otherwise met the Act’s conditions for preclusion. 

—————— 

4The investors claim that the funds facilitated the practice of “market

timing,” whereby traders of mutual fund shares exploit brief discrepancies between the stock prices used to calculate the shares’ value once a 

day, and the prices at which those stocks are actually trading in the 

interim. Brief for Petitioners 6. The investors say that market timing

is harmful to long-term holders of mutual fund shares and that the 

funds negligently or recklessly failed to adopt procedures to protect the 

value of the investors’ long-term investments. 5As discussed in Part III, infra, we have since rejected this reasoning, 

see Dabit, supra, at ___ (slip op., at 16). 
4 KIRCHER v. PUTNAM FUNDS TRUST 

Opinion of the Court 

The funds filed notices of appeal from the remand orders, and in one of the cases, Kircher v. Putnam Funds 

Trust, the Seventh Circuit issued an opinion addressing

the threshold question of its appellate jurisdiction. 373 

F. 3d 847 (2004). The Court of Appeals acknowledged that 

28 U. S. C. §1447(d) bars review of district court orders

remanding for lack of subject matter jurisdiction, 373

F. 3d, at 849 (citing Gravitt v. Southwestern Bell Telephone Co., 430 U. S. 723 (1977) (per curiam)), but decided

that the District Court had the last word neither on the 

characterization of its decision as jurisdictional nor on the

correctness of its conclusion that remand was required, 

see 373 F. 3d, at 849. 

The Court of Appeals considered all covered class actions involving covered securities, whether precluded or 

not, to be removable under the Act, and for that reason 

thought the preclusion issue to be distinct from the jurisdictional issue of whether the case belonged in federal

court at all. Id., at 849–850. In the view of the Court of 

Appeals, if the District Court remanded because, for example, the class comprised too few investors to make the

case a covered class action, that would be a jurisdictional 

decision that the case had been removed improperly, and 

the order would therefore be unreviewable in accordance 

with §1447(d). Id., at 849. But the court held that orders 

remanding “properly removed” suits as not precluded by

the Act are substantive, “unaffected by §1447(d),” id., at 851, 

and therefore subject to appellate jurisdiction in the normal 

course. 

As the Court of Appeals put it, once the District Court

had made that substantive decision of no preclusion in

this case, it was time for the court to bow out, not because 

it had lacked “adjudicatory competence” to begin with but 

because it had completed its work: “Once a court does all

that the statute authorizes, there is no adjudicatory competence to do more. That is not the ‘lack of subject-matter 
Cite as: 547 U. S. ____ (2006) 5 

Opinion of the Court 

jurisdiction’ that authorizes a remand. Otherwise every

federal suit, having been decided on the merits, would be

dismissed ‘for lack of jurisdiction’ because the court’s job

was finished.” Id., at 850. This remand, the court concluded, was therefore not for want of jurisdiction, and 

review was not barred by §1447(d). 

To satisfy itself that its decision made “practical sense,” 

the court proposed that the Act reserves to the Federal 

Judiciary the exclusive authority to make the preclusion 

decision. Ibid. Treating remand orders in this context as 

immunized from appeal by §1447(d) would thus mean that 

“a major substantive issue in the case [would] escape 

review,” since it would not be open to resolution in the

state court subject to review by this Court. Ibid. 

The Seventh Circuit subsequently consolidated the

funds’ appeals and decided, on the merits, that the Act 

does preclude the investors’ claims. 403 F. 3d 478 (2005). 

We granted certiorari to resolve a split of authority on the 

question whether §1447(d) bars review of remand orders 

in cases removed under the Act,6 546 U. S. ___ (2006), and 

we now vacate for want of jurisdiction on the part of the 

Court of Appeals. 

II 

The policy of Congress opposes “interruption of the 

litigation of the merits of a removed cause by prolonged 

litigation of questions of jurisdiction of the district court to

which the cause is removed,” United States v. Rice, 327 

U. S. 742, 751 (1946), and nearly three years of jurisdictional advocacy in the cases before us confirm the congressional wisdom. For over a century now, statutes have 

accordingly limited the power of federal appellate courts to 

—————— 

6Compare 373 F. 3d 847 (CA7 2004) (case below), with Spielman v. 

Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F. 3d 116 (CA2 2003); 

Abada v. Charles Schwab & Co., 300 F. 3d 1112 (CA9 2002); Williams 

v. AFC Enterprises, Inc., 389 F. 3d 1185 (CA11 2004). 
6 KIRCHER v. PUTNAM FUNDS TRUST 

Opinion of the Court 

review orders remanding cases removed by defendants

from state to federal court, see id., at 748–752; Thermtron 

Products, Inc. v. Hermansdorfer, 423 U. S. 336, 346–348 

(1976). The current incarnation is 28 U. S. C. §1447(d), 

which provides that an “order remanding a case to the 

State court from which it was removed is not reviewable 

on appeal or otherwise.”7 In Thermtron, we held that the 

bar of §1447(d) applies only to remands based on the 

grounds specified in §1447(c), that is, a defect in removal

procedure or lack of subject matter jurisdiction. 423 U. S., 

at 343–345; see also Things Remembered, Inc. v. Petrarca, 

516 U. S. 124, 127–128 (1995). So, we have approved appellate review of a remand expressly based on the District

Court’s crowded docket, see Thermtron, supra, at 340–341, 

and one based on abstention under Burford v. Sun Oil Co., 

319 U. S. 315 (1943), see Quackenbush v. Allstate Ins. Co., 

517 U. S. 706, 710–712 (1996). But we have relentlessly

repeated that “any remand order issued on the grounds 

specified in §1447(c) [is immunized from all forms of appellate review], whether or not that order might be 

deemed erroneous by an appellate court.” Thermtron, 423 

U. S., at 351; see also id., at 343 (“If a trial judge purports

to remand a case on the ground that it was removed ‘improvidently and without jurisdiction,’ his order is not

subject to challenge in the court of appeals” (quoting

§1447(c) (1976 ed.))).

The bar of §1447(d) applies equally to cases removed 

under the general removal statute, §1441, and to those 

removed under other provisions, see Things Remembered, 

Inc., supra, at 128, and the force of the bar is not subject to

any statutory exception that might cover this case.8 Osten-

—————— 

7Title 28 §1447(d) specifically excepts certain civil rights actions from

its bar; cf. §1443. 8 “Absent a clear statutory command to the contrary, we assume that

Congress is aware of the universality of th[e] practice of denying 

appellate review of remand orders when Congress creates a new ground 
Cite as: 547 U. S. ____ (2006) 7 

Opinion of the Court 

sibly, then, §1447(d) stands in the way of reviewing the 

District Court’s orders of remand in the present cases. The 

District Court said that it was remanding for lack of jurisdiction, an unreviewable ground, and even if it is permissible to look beyond the court’s own label, the orders are

unmistakably premised on the view that removal jurisdiction under 15 U. S. C. §77p(c) is limited to cases precluded 

by §77p(b); on the District Court’s understanding that

“holder” claims are not subject to preclusion under §77p(b) 

of the Act, the court had no subject matter jurisdiction.

9 

Since there was no indication that removal jurisdiction

might exist on some ground other than §77p(c) (complete

diversity, for example),

10 the remand orders were necessarily based on the trial court’s conclusion that jurisdiction 

under §77p(c) was wanting. And “[w]here the order is

based on one of the [grounds enumerated in 28 U. S. C. 

§1447(c)], review is unavailable no matter how plain the 

legal error in ordering the remand,” Briscoe v. Bell, 432 

—————— 

for removal,” Things Remembered, 516 U. S., at 128 (internal quotation

marks omitted), like 15 U. S. C. §77p(c). Congress has, when it wished,

expressly made 28 U. S. C. §1447(d) inapplicable to particular remand

orders. See, e.g., §1447(d); 12 U. S. C. §1441a(l)(3)(C); §1819(b)(2)(C);

25 U. S. C. §487(d); cf. n. 6, supra. There is no such “clear statutory

command” here, and that silence tells us we must look to 28 U. S. C. 

§1447(d) to determine the reviewability of remand orders under the 

Act. 9We take a pass on Justice Scalia’s position that we may not look 

beyond the label, see post, at 3; the result here is the same whether we 

look near or far. 10These cases raise exclusively state-law claims seeking damages 

insufficient to satisfy the amount-in-controversy requirement of 28 

U. S. C. §1332; in those instances in which the funds asserted diversity

as a basis for subject matter jurisdiction, the District Court determined 

that no named plaintiff had a claim that met §1332’s $75,000 threshold.

See, e.g., Parthasarthy v. T. Rowe Price International Funds, Inc., No. 

03–CV–0673–DRH (SD Ill., Jan. 30, 2004), App. to Pet. for Cert. 34a–

37a; Spurgeon v. Pacific Life Ins. Co., No. 04–CV–0355–MJR (SD Ill., 

June 24, 2004), App. to Pet. for Cert. 59a–60a. 
8 KIRCHER v. PUTNAM FUNDS TRUST 

Opinion of the Court 

U. S. 404, 413 –414, n.13 (1977).

The Court of Appeals did not, of course, overlook the 

cases holding that even a remand premised on an erroneous conclusion of no jurisdiction is unappealable; it relied

instead on cases like Kontrick v. Ryan, 540 U. S. 443 

(2004), and Scarborough v. Principi, 541 U. S. 401 (2004), 

which observed that some rulings loosely called jurisdictional are patently not jurisdictional in the strict sense,

see 373 F. 3d, at 849 (citing Kontrick, supra; Scarborough, 

supra). The appeals court saw this as such a case; it 

understood that a district court had removal jurisdiction 

over any covered action under subsection (c), with the

consequence that a subsequent order dismissing because 

of preclusion under subsection (b), or remanding because

the action was not precluded, rested simply on an application of substantive law under subsection (b), law that was

not jurisdictional at all.

We think, however, that the District Court was correct 

in understanding its remand order to be dictated by its 

finding that it lacked removal jurisdiction. Unlike the 

Court of Appeals, we read authorization for the removal in 

subsection (c), on which the District Court’s jurisdiction

depends, as confined to cases “set forth in subsection (b),”

§77p(c), namely, those with claims of untruth, manipulation, and so on. The quoted phrase immediately follows

the subsection (c) language describing removable cases as 

covered class actions involving covered securities, and the

language has no apparent function unless it limits removal to covered class actions involving claims like untruth or deception. And legislative history tends to show 

that this was just what Congress understood. See S. Rep. 

No. 105–182, p. 8 (1998) (§77p(c) “provides that any class 

action described in Subsection (b) that is brought in a 

State court shall be removable to Federal district court, 

and may be dismissed pursuant to the provisions of sub-
Cite as: 547 U. S. ____ (2006) 9 

Opinion of the Court 

section (b)”); H. R. Rep. No. 105–640, p. 16 (1998) (same).11 

The funds argue that removal jurisdiction is broader by

emphasizing the adjective that introduces subsection (c):

“Any” covered action. §77p(c). But that suggestion would 

be persuasive only if we stopped reading right there, and 

we do not stop there; we do not read statutes in little bites. 

And, as just noted, if we did read the removal power that

broadly there would be no point to the phrase “as set forth 

in subsection (b),” for subsection (b) cases would be removable anyway as a subset of covered class actions. Ibid. 

The funds purport to counter this objection with their 

argument that on our reading the last phrase of subsection (c) is redundant in providing that removed cases

“shall be subject to subsection (b),” since subsection (b) 

cases would in any event be so subject. Ibid. The funds 

are in fact right about that redundancy, but the point does 

not count for their side, because the phrase is redundant

on their reading, too: any subsection (b) case removed as

falling within the broad category of covered class actions 

would be treated in accordance with subsection (b) if the 

subsection applied to that case. In sum, we see no reason 

to reject the straightforward reading: removal and jurisdiction to deal with removed cases is limited to those 

precluded by the terms of subsection (b).

Once removal jurisdiction under subsection (c) is understood to be restricted to precluded actions defined by 

subsection (b), a motion to remand claiming the action is

not precluded must be seen as posing a jurisdictional 

issue. If the action is precluded, neither the District Court

nor the state court may entertain it, and the proper course 

—————— 

11Like the Court of Appeals here, we said in Dabit that a “key provision of the [Act] makes all ‘covered class actions’ filed in state court

removable.” 547 U. S, at ___, n. 7 (slip op., at 10, n. 7) (quoting 112 Stat. 

3230). We sketched the removal provision in broad strokes then because 

the question of its scope was not before us. Now that it is, we speak more 

cautiously. 
10 KIRCHER v. PUTNAM FUNDS TRUST 

Opinion of the Court 

is to dismiss. If the action is not precluded, the federal

court likewise has no jurisdiction to touch the case on the 

merits, and the proper course is to remand to the state 

court that can deal with it. In either event, as the Court of 

Appeals said, the district court’s order comes because its

adjudicatory power has been exercised and its work is 

done. But its adjudicatory power is simply its authority to

determine its own jurisdiction to deal further with the 

case, see United States v. Shipp, 203 U. S. 563, 573 (1906) 

(opinion for the Court by Holmes, J.) (A federal court

“necessarily ha[s] jurisdiction to decide whether the case

[is] properly before it”). The work done is jurisdictional,12 

—————— 

12The funds argue 15 U. S. C. §77p confers jurisdiction greater than

that necessary to render the preclusion decision, analogizing §77p(c) to

the federal officer removal statute, 28 U. S. C. §1442(a). If there is any

colorable claim that an action is precluded, the argument goes, the

district court can keep the case for adjudication, even after concluding

on the merits that the state-law claims are not precluded; but because

it has discretion to keep the case or remand to state court, a remand is 

not jurisdictional and hence is reviewable. The argument is flawed for 

two reasons. The District Court here did not indicate it thought there 

was any basis to keep the case for further development; right or wrong, 

it understood that it was making a jurisdictional ruling. Nor is the 

analogy with federal officer cases sound. 

Section 1442(a) is an exception to the “well-pleaded complaint” rule,

under which (absent diversity) “a defendant may not remove a case to

federal court unless the plaintiff’s complaint establishes that the case

‘arises under’ federal law.” Franchise Tax Bd. of Cal. v. Construction 

Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 10 (1983) (emphasis deleted). The federal officer removal statute allows “suits against 

federal officers [to] be removed despite the nonfederal cast of the complaint,” Jefferson County v. Acker, 527 U. S. 423, 431 (1999), and reflects a 

congressional policy that “federal officers, and indeed the Federal Government itself, require the protection of a federal forum,” Willingham v. 

Morgan, 395 U. S. 402, 407 (1969). An officer’s federal defense need be 

only colorable to assure the federal court that it has jurisdiction to adjudicate the case, see Acker, supra, at 431. 

The funds assert that a preclusion defense need be only colorable as 

well, but the Act is different. It avails a defendant of a federal forum in 

contemplation not of further litigation over the merits of a claim brought 
Cite as: 547 U. S. ____ (2006) 11 

Opinion of the Court 

as is the conclusion reached and the order implementing 

it.13 

—————— 

in state court, but of termination of the proceedings altogether, and a 

merely colorable claim of preclusion does not satisfy a district court that it

may dismiss a case as precluded by the Act. There is no room for such a 

case to exist in a limbo of colorable preclusion; if a claim is precluded, it

“may [not] be maintained,” 15 U. S. C. §77p(b), and if the claim is not, the 

federal courts no longer have any business being involved, as there is no

longer any federal question on which to moor the district court’s jurisdiction. Nor has Congress expressed in the Act, as it did with 28 U. S. C.

§1442(a), any policy of having particular suits tried in a federal court;

there is no indication whatsoever in the Act that, apart from its purpose to

preclude certain vexing state-law class actions, Congress intended to add 

other state-law cases to the federal dockets, and there is no apparent

federal interest in spending time on such cases akin to the interest in

adjudicating suits against federal officers. 13The funds suggest, in the alternative, that appellate jurisdiction in

this case was proper under Waco v. United States Fidelity & Guaranty 

Co., 293 U. S. 140 (1934). Without passing on the continued vitality of 

that case in light of §1447(d), we note that on its own terms it is distinguishable. 

In Waco, a case was removed to federal court on an invocation of 

diversity jurisdiction, id., at 141, and the District Court thereafter 

“entered a single decree embodying . . . separate orders.” Id., at 142. In 

one order, the District Court dismissed a cross-complaint against one 

party. In another, the District Court concluded that because of the 

dismissal there was no diversity of citizenship and it thus lacked 

jurisdiction, and so it remanded the case to state court. An appeal was 

taken from the order of dismissal. This Court determined that the 

appeal would lie, because “the decree of dismissal preceded that of

remand,” and because the District Court’s order of dismissal was 

conclusive upon the parties. Id., at 143. We noted that a “reversal [of 

the dismissal] cannot affect the order of remand, but it will at least, if

the dismissal . . . was erroneous, remit the entire controversy, with the 

[previously dismissed party] still a party, to the state court for . . . 

further proceedings.” Id., at 143–144. 

The order appealed in Waco was not a remand order; the order here 

is, and thus falls within §1447(d)’s bar on appeals of “[a]n order remanding a case” to state court. Moreover, the funds do not explain how 

to reconcile their argument with Waco’s acknowledgement that the

order of remand “cannot [be] affect[ed]” notwithstanding any reversal of

a separate order, id., at 143. The District Court’s remand order here 
12 KIRCHER v. PUTNAM FUNDS TRUST 

Opinion of the Court

III 

We have yet to deal with one objection to our application

of §1447(d), which if well-taken would be a serious one. 

The Seventh Circuit’s reading of subsection (c) so as to

treat the application of the preclusion rule as nonjurisdictional was in part motivated by its assumption

that the Act gives federal courts exclusive jurisdiction to 

decide the preclusion issue. If that is so, and §1447(d) 

applies, a remand order based on a finding that an action

is not precluded would arguably be immune from review. 

This is what the funds in effect contend here when they

say that a district court’s finding of no subsection (b) 

preclusion would collaterally estop the state court on 

remand; the district court would have the last word. And 

of course the funds’ discomfort is made acute by our recent

decision in Dabit, which expressly disavows the district court’s limited view of the scope of subsection (b)

preclusion.

But a district court does not have the last word on preclusion under the Act, for nothing in the Act gives the

federal courts exclusive jurisdiction over preclusion decisions. A covered action is removable if it is precluded, and 

a defendant can enlist the Federal Judiciary to decide 

preclusion, but a defendant can elect to leave a case where

the plaintiff filed it and trust the state court (an equally

competent body, see Missouri Pacific R. Co. v. Fitzgerald,

160 U. S. 556, 583 (1896)) to make the preclusion determination. 

And what a state court could do in the first place it may

also do on remand; in this case, the funds can presently 

argue the significance of Dabit and ask for dismissal on 

grounds of preclusion when they return to the state court. 

—————— 

cannot be disaggregated as the Waco orders could, and if the Seventh 

Circuit’s preclusion decision stands, there is nothing to remand to state 

court. 
Cite as: 547 U. S. ____ (2006) 13 

Opinion of the Court 

Collateral estoppel should be no bar to such a revisitation

of the preclusion issue,14 given that §1447(d) prevents the 

funds from appealing the District Court’s decision. See 

Standefer v. United States, 447 U. S. 10, 23 (1980) 

(“[C]ontemporary principles of collateral estoppel . . . 

strongly militat[e] against giving an [unreviewable judgment] preclusive effect” (citing Restatement (Second) of

Judgments §68.1 (Tent. Draft No. 3, 1976)); see also Restatement (Second) of Judgments §28(1) (1980) (“Although 

an issue is actually litigated and determined by a valid 

and final judgment, and the determination is essential to

the judgment, relitigation of the issue in a subsequent 

action between the parties is not precluded [when t]he

party against whom preclusion is sought could not, as a 

matter of law, have obtained review of the judgment in the 

initial action”). While the state court cannot review the 

decision to remand in an appellate way, it is perfectly free 

to reject the remanding court’s reasoning, as we explained 

over a century ago in Missouri Pacific Railway: “[A]s to

applications for removal on the ground that the cause 

arose under the Constitution, laws, or treaties of the 

United States,” the finality accorded remand orders is 

appropriate because questions of this character “if decided 

against the claimant” in state court are “open to revision

. . ., irrespective of the ruling of the [federal court] in that

regard in the matter of removal.” 160 U. S., at 583. Nor is 

there any reason to see things differently just because the 

remand’s basis coincides entirely with the merits of the 

federal question; it is only the forum designation that is 

conclusive. Here, we have no reason to doubt that the 

state court will duly apply Dabit’s holding that holder 

—————— 

14Modern usage calls for the descriptive term, “issue preclusion,” in 

place of “collateral estoppel.” But we are backsliders out of pity for the

tired reader; “preclusion” by statutory fiat is enough preclusion for one 

opinion. 
14 KIRCHER v. PUTNAM FUNDS TRUST 

Opinion of the Court 

claims are embraced by subsection (b),15 but any claim of

error on that point can be considered on review by this 

Court. See Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 12, n. 

12 (1983) (“If the state courts reject a claim of federal preemption, that decision may ultimately be reviewed on

appeal by this Court” (citing Fidelity Fed. Sav. & Loan 

Assn. v. De la Cuesta, 458 U. S. 141 (1982))). 

IV 

We hold that the Act does not exempt remand orders

from 28 U. S. C. §1447(d) and its general rule of nonappealability. We therefore vacate the judgment of the

Court of Appeals and remand the case with instructions to

dismiss the appeal for lack of jurisdiction. 

It is so ordered. 

—————— 

15The parties further dispute whether the investors’ claims satisfy the 

other 15 U. S. C. §77p(b) preclusion prerequisites, particularly the allegation of fraud; the investors take issue with the Seventh Circuit’s characterization of their claims as charging fraud or manipulation, not mismanagement. Because the Court of Appeals lacked appellate 

jurisdiction, its reading of the investors’ litigation position is not 

binding in future proceedings and is open to consideration on remand. 
_________________ 

_________________ 

Cite as: 547 U. S. ____ (2006) 1 

Opinion of SCALIA, J. 

SUPREME COURT OF THE UNITED STATES 

No. 05–409 

CARL KIRCHER, ET AL., PETITIONERS v. PUTNAM 

FUNDS TRUST ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 15, 2006] 

JUSTICE SCALIA, concurring in part and concurring in 

the judgment. 

I join the judgment of the Court, and Parts I, III, and IV 

of the Court’s opinion; I do not join Part II for the reasons

set forth below. 

The District Court ordered these cases remanded to 

state court for want of jurisdiction. We know this because 

the orders say so: “Because the Court lacks subject matter

jurisdiction, the Court REMANDS this action to the 

Madison County, Illinois Circuit Court.” App. to Pet. for

Cert. 27a; see also id., at 30a, 40a, 46a, 51a, 57a, 64a. 

Even if those decisions were incorrect, the Court of Appeals lacked jurisdiction to review them because 28 

U. S. C. §1447(d) bars appellate review of remand orders

based on lack of subject-matter jurisdiction. See, e.g., 

Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127– 

128 (1995). The Court correctly concludes that the Seventh Circuit’s review of the remand orders overstepped its 

appellate authority. I disagree with the Court’s reasoning

in Part II, however, because it holds only that the Court of

Appeals’ recharacterization was incorrect, and not (as I 

believe) that recharacterization—being a form of review—

is categorically forbidden.

The Court of Appeals rejected the District Court’s description of its orders because it believed the District 
2 KIRCHER v. PUTNAM FUNDS TRUST 

Opinion of SCALIA, J. 

Court had been too loose in its use of the term “jurisdiction.” 373 F. 3d 847, 849–850 (2004). What the District 

Court actually did, the Court of Appeals concluded, was to 

remand on nonjurisdictional grounds (not subject to the 

appellate-review bar of §1447(d)) after deciding that petitioners’ suits were not precluded. Such recharacterization 

seems to me flatly inconsistent with §1447(d). Under that 

section, an “order remanding a case to the State court

from which it was removed is not reviewable on appeal or

otherwise.” Ibid. (emphasis added). But appellate review 

is exactly what is involved in looking behind the face of an 

order to determine its true basis: In order to reject a district court’s own characterization, a court of appeals must

decide, as the Seventh Circuit did here, that the district 

court was wrong. We have therefore held, in language 

that makes plain the correct outcome here, that “[i]f a trial

judge purports to remand a case on the ground that it was

removed ‘improvidently and without jurisdiction,’ his

order is not subject to challenge in the court of appeal, by 

mandamus, or otherwise.” Thermtron Products, Inc. v. 

Hermansdorfer, 423 U. S. 336, 343 (1976) (quoting §1447(c) 

(1970 ed.); emphasis added). Whether the District Court 

was right or wrong—even if it was so badly mistaken that

it misunderstood the true basis for its orders—it purported

to remand for lack of jurisdiction, and §1447(d) bars any 

further review.* 

Review of the sort engaged in by the Court of Appeals 

threatens to defeat the purpose of §1447(d). As we recognized in Thermtron Products, the appellate-review bar was

enacted “to prevent delay in the trial of remanded cases by 

—————— 

*To say that we cannot recharacterize the District Court’s remand for 

lack of jurisdiction is not to say that the basis for the remand is forever 

insulated from review. Part III of the Court’s opinion makes clear that 

the underlying legal issue of preclusion remains open in state court, 

and need not be resolved in accordance with the (unreviewable) views of 

the District Court. 
Cite as: 547 U. S. ____ (2006) 3 

Opinion of SCALIA, J. 

protracted litigation of jurisdictional issues.” Id., at 351. 

Such delay can be created just as easily by asking whether 

the district court correctly characterized the basis for its 

order as it can by asking whether that basis was correct—

which even the Court of Appeals recognized was beyond 

its jurisdiction, 373 F. 3d, at 849. See also Thermtron 

Products, supra, at 343 (noting that §1447(d) “prohibits

review of all remand orders [based on lack of subjectmatter jurisdiction] whether erroneous or not”). The 

remand orders in these cases date back to early 2004; over

two years later, federal courts are still engaged in appellate review. 

The Court should end this delay by holding that appellate courts cannot look behind the stated basis for the 

district court’s remand order. Instead, it concludes that 

“the District Court was correct in understanding its remand order to be dictated by a finding that it lacked removal jurisdiction.” Ante, at 8 (emphasis added). It seems 

to me no more within our authority to declare the District

Court’s views correct than it was within the Court of 

Appeals’ authority to reject them. Either decision is an 

exercise of appellate review barred by the plain terms of 

§1447(d).