Hill Ex Rel. New Mexico Educational Retirement Fund v. Vanderbilt Capital Advisors, LLC, 702 F.3d 1220

Plaintiffs are New Mexico Education Retirement Fund members who invested $40 million in Vanderbilt's high-risk Vanderbilt trust, allegedly via a pay-to-play scheme with political connections.
ERB approved the $40 million Vanderbilt investment on May 12, 2006 despite alleged procedural irregularities and misrepresentations.
Plaintiffs filed state-court claims; the case was removed to federal court, where federal securities claims were later added, over which the federal court has exclusive jurisdiction.
The district court granted a Rule 12(b)(1) motion, held plaintiffs lacked standing, and remanded the entire case to state court for lack of subject-matter jurisdiction, under § 1447(c).
Plaintiffs appealed, arguing standing and subject-matter jurisdiction are distinct, and that remand should be reviewed notwithstanding § 1447(d).
This court must determine whether the remand order is reviewable where the district court labeled the basis as lack of standing but the basis is colorably jurisdictional.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the remand order reviewable on appeal?	Plaintiffs contend standing and jurisdiction are distinct; remand papered as lack of standing should be reviewable.	District court’s remand rests on lack of standing which is colorably jurisdictional, barred from review by § 1447(d).	Appeal is dismissed; remand grounded on colorable lack of jurisdiction is not reviewable.
Whether standing is an element of subject-matter jurisdiction in this circuit adoption.	Standing is separate from jurisdiction and not a basis to bar review of remand.	Standing is treated as an aspect of subject-matter jurisdiction; remand based on standing is unreviewable.	Standing is treated as a jurisdictional issue; remand is not reviewable.
Does the Waco/Powerex framework permit review of the remand order?	Under Waco, some dismissal-review is possible despite remand.	Waco does not permit review when there is no separate order from remand.	Waco exception does not apply.
Was the district court’s remand properly classified as jurisdictional ground?	Remand was proper on standing but not jurisdiction; misclassification should allow review.	Remand was properly grounded in jurisdictional concerns masquerading as standing.	Classification as colorable jurisdictional ground is correct; review is barred.

Moody v. Great W. Ry., 536 F.3d 1158 (10th Cir. 2008) (colorable jurisdictional basis for remand barred from review)
Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224 (S. Ct. 2007) (remand grounds must be treated as jurisdictional or non-jurisdictional for review)
Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72 (S. Ct. 1991) (removal and remand context; no discretion to remand for futility)
Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir. 1991) (discussion of futility exception in remand context)
Kircher v. Putnam Funds Trust, 547 U.S. 633 (S. Ct. 2006) (remand when subject-matter jurisdiction lacks grounds)
Kennedy v. Lubar, 273 F.3d 1293 (10th Cir. 2001) (remand when remand involves lack of jurisdiction; no discretionary review)
Fent v. Okla. Water Res. Bd., 235 F.3d 553 (10th Cir. 2000) (no discretion to dismiss rather than remand when § 1447(c) applies)
Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140 (S. Ct. 1934) (Waco doctrine; review limitations on remand orders)
Powerex Corp. v. Reliant Energy Servs. (duplicate entry for completeness), 551 U.S. 224 (S. Ct. 2007) (see above)