Harvey v. Ute Indian Tribe of the Uintah & Ouray Reservation
797 F.3d 800
10th Cir.2015Background
- Plaintiffs sued in Utah state court for declaratory and injunctive relief about Ute Tribe authority and alleged harassment/extortion by tribal employees.
- Some individual defendants were initially served and litigated in state court; pro hac vice counsel later appeared for others and an amended complaint added defendants.
- The Ute Indian Tribe filed a notice of removal to federal court asserting that certain defendants consented and that the rest would; most defendants later filed consents, but one did not.
- Plaintiffs moved to remand, asserting waiver by litigation, untimeliness, lack of unanimous consent to removal, and lack of federal subject-matter jurisdiction.
- The district court granted remand, concluding initial defendants waived removal/consent by manifesting intent to litigate in state court and therefore unanimity was lacking; the Tribe appealed.
- The Tenth Circuit held the appeal must be dismissed because 28 U.S.C. § 1447(d) bars review of remands that are colorably based on defects in removal procedure (here, lack of unanimity).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether remand is reviewable under § 1447(d) when based on lack of unanimous consent to removal | Remand was proper; unanimity missing because some defendants waived consent by litigating in state court | § 1447(d) precludes appellate review only when remand rests on lack of subject-matter jurisdiction; court should review unanimity factual/legal correctness | Remand orders that are colorably grounded in defects in removal procedure (including lack of unanimity) are not reviewable under § 1447(d); appeal dismissed |
| Whether the court may ‘‘look behind’’ a district court’s stated basis for remand to decide correctness | Plaintiffs: district court’s basis (waiver) properly supports lack of unanimity; no review needed | Tribe: invites appellate review to determine whether unanimity truly was absent and whether waiver analysis was a merits/substantive issue | Court limited to determining only whether remand can be "colorably characterized" as based on lack of unanimity, not whether that basis was correct; here it was colorable |
| Whether remand based on waiver-by-litigation is necessarily reviewable as a merits determination | Plaintiffs: waiver here was procedural and intrinsic to removal; not a merits determination | Tribe: argued district court’s waiver finding required substantive inquiry and should be reviewable | Court declined to treat the waiver determination as an external merits ruling; because the waiver analysis was intrinsic to removal and produced lack of unanimity, remand is unreviewable |
| Whether SBKC (remand review when based on substantive contract law) controls | Plaintiffs: SBKC inapplicable because remand here turned on procedural unanimity, not extrinsic contract merits | Tribe: urged examination of SBKC and similar precedents to permit review | Court held SBKC does not apply where the district court’s ruling is intrinsic to removal procedure; no review permitted |
Key Cases Cited
- Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007) (§ 1447(d) read with § 1447(c); appellate review limited to whether district court’s characterization as jurisdictional or procedural was colorable)
- Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976) (early limit on § 1447(d) breadth; remands tied to certain grounds are not reviewable)
- Moody v. Great W. Ry. Co., 536 F.3d 1158 (10th Cir. 2008) (courts limited to assessing colorability of remand rationale under Powerex)
- Atlantic Nat’l Trust LLC v. Mount Hawley Ins. Co., 621 F.3d 931 (9th Cir. 2010) (held Powerex’s limitations apply to remands based on non-jurisdictional defects like lack of unanimity)
- SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578 (10th Cir. 1997) (pre-Powerex decision permitting review when remand rested on substantive contract merits; distinguished here)
- Huffman v. Saul Holdings Ltd. P’shp, 194 F.3d 1072 (10th Cir. 1999) (failure to meet statutory removal requirements renders removal defective and supports remand)
- Kircher v. Putnam Funds Trust, 547 U.S. 633 (2006) (even if courts may look beyond labels, adequacy of the underlying basis is generally not reviewable)