Harvey v. Ute Indian Tribe of the Uintah & Ouray Reservation

• Decision Date: 13 August 2015
• Docket Number: No. 14–4089.,14–4089.
• Citation: 797 F.3d 800
• Parties: Ryan Uresk HARVEY; Rocks Off, Inc.; Wild Cat Rental Inc., Plaintiffs–Appellees, v. UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, Defendant–Appellant, and Dino Cesspooch, in his individual and official capacity as a Utero commissioner; Jackie LaRose, in his individual and official capacity as a Utero commissioner; Sheila Wopsock, in her individual and official capacity as a Utero commissioner; Newfield Production; Newfield Rocky Mountains; Newfield RMI, LLC; Newfield Drilling Services; L.C. Welding & Construction, Inc.; Scamp Excavation, Inc. ; Huffman Enterprises; LaRose Construction Company, Inc.; D. Ray C. Enterprises, LLC, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

797 F.3d 800

Ryan Uresk HARVEY; Rocks Off, Inc.; Wild Cat Rental Inc., Plaintiffs–Appellees

v. UTE INDIAN TRIBE OF THE UINTAH AND OURAY RESERVATION, Defendant–AppellantandDino Cesspooch, in his individual and official capacity as a Utero commissioner; Jackie LaRose, in his individual and official capacity as a Utero commissioner; Sheila Wopsock, in her individual and official capacity as a Utero commissioner; Newfield Production; Newfield Rocky Mountains; Newfield RMI, LLC; Newfield Drilling Services; L.C. Welding & Construction, Inc.; Scamp Excavation, Inc. ; Huffman Enterprises; LaRose Construction Company, Inc.; D. Ray C. Enterprises, LLC, Defendants.

No. 14–4089.

United States Court of Appeals, Tenth Circuit.

Aug. 13, 2015.

Clark B. Allred, Bradley D. Brotherson, Allred Brotherson & Harrington, John D. Hancock, John D. Hancock Law Group, Roosevelt, UT, for Plaintiffs–Appellees.

Frances C. Bassett, Thomas W. Fredericks, Jeremy Patterson, Eduardo A. Provencio, Jeffrey S. Rasmussen, Fredericks Peebles & Morgan, Louisville, CO, J. Preston Stieff, J. Preston Stieff Law Offices, Salt Lake City, UT, for Defendant–Appellant.

Joel Thomas Zenger, Miller Toone, Chris R. Hogle, Holland & Hart, Patrick Scot Boice, Salt Lake City, UT, for Defendants.

Before LUCERO, HARTZ, and HOLMES, Circuit Judges.

Opinion

LUCERO, Circuit Judge.

Under 28 U.S.C. § 1447(d), a district court order remanding a case to state court is “not reviewable on appeal or otherwise.” Notwithstanding this apparently clear language, federal courts have frequently wrestled with the question of whether the “not reviewable” language of § 1447(d) genuinely precludes appellate review of a remand order. We hold that a district court order remanding because the defendants did not unanimously join or consent to removal is patently “not reviewable.” Further, we conclude that the remand order in this case was colorably characterized as being based on lack of unanimity. Accordingly, we must dismiss this appeal.

I

In April 2013, plaintiffs filed a complaint in Utah state court seeking declaratory and injunctive relief. The complaint sought a declaration as to the authority of the Ute Indian Tribe of the Uintah and Ouray Reservation (the “Tribe”) over non-Indian businesses operating on certain categories of land. It also alleged that Dino Cesspooch, Jackie LaRose, and Sheila Wopsock, individuals affiliated with the Ute Tribal Employment Rights Office (“UTERO”), had harassed and extorted plaintiffs in violation of state law.

Defendants filed a motion to dismiss in state court by way of a special appearance on May 1, 2013, arguing that service of process had been insufficient, that the state court lacked subject matter jurisdiction in the absence of a valid waiver of tribal sovereign immunity, that the Tribe and its officers are immune from suit but are necessary and indispensable parties, and that plaintiffs failed to exhaust administrative remedies in tribal court. Cesspooch and LaRose were properly served on May 8, 2013. On June 6, two attorneys for the defendants moved for pro hac vice admissions. The motions were granted.

Following a July 2013 hearing on the motion to dismiss, the state court ordered further briefing on the issue of whether defendants' motion constituted a general appearance and authorized substituted service on the Tribe and Wopsock. It took the remainder of the motion under advisement. On August 16, 2013, the court granted plaintiffs' motion to file an amended complaint adding additional defendants. The Tribe, Cesspooch, LaRose, and Wopsock were served the amended complaint on September 3, 2013. The last defendant was served on September 26, 2013.

The Tribe filed a notice of removal in the U.S. District Court for the District of Utah on September 20, 2013. In its notice, the Tribe stated that Cesspooch, LaRose, and Wopsock consented to removal, and that the remaining defendants would consent. The remaining defendants, save one,¹ filed consent and joinders to removal on October 3 and 4, 2013. Plaintiffs then filed a motion to remand, arguing that the initial defendants waived their right to removal—or to consent to removal—by litigating in state court, that removal was untimely, that the defendants had not unanimously consented to removal, and that the federal court lacked subject matter jurisdiction.

After a hearing, the district court granted the motion to remand. It concluded that because the initial defendants' conduct manifested an intent to litigate in state court, they waived their right to removal and their right to consent to removal. Removal was accordingly improper based on both waiver and lack of unanimity. The Tribe timely filed a notice of appeal from the district court's remand order.

II

Pursuant to § 1447(d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”² However, the Supreme Court has concluded that some remand orders are appealable despite the plain language of the statute. In Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007), the Court reaffirmed “that § 1447(d) should be read in pari materia with § 1447(c), so that only remands based on the grounds specified in the latter are shielded by the bar on review mandated by the former.”Powerex, 551 U.S. at 229, 127 S.Ct. 2411. Accordingly, § 1447(d) has been interpreted to “preclude review only of remands for lack of subject-matter jurisdiction and for defects in removal procedure.” Id.; see also § 1447(c) (requiring remand if “it appears that the district court lacks subject matter jurisdiction” and permitting remand “on the basis of any defect other than lack of subject matter jurisdiction”).

Although Powerex reaffirms that some remand orders are reviewable, it also establishes that “review of the District Court's characterization of its remand as resting upon lack of subject-matter jurisdiction, to the extent it is permissible at all, should be limited to confirming that that characterization was colorable.” Powerex, 551 U.S. at 234, 127 S.Ct. 2411. If a district court bases its remand decision “upon a ground that is colorably characterized as subject-matter jurisdiction, appellate review is barred by § 1447(d).” Id. We have previously explained that, in light of Powerex, appellate review of remand orders is highly circumscribed:

Some of our prior cases suggested that, in making the determination whether § 1447(d) bars review, we could independently review the actual grounds upon which the district court believed it was empowered to remand. However, the Supreme Court has clarified that the scope of this determination is narrower. When a district court states that it based its remand on a lack of subject-matter jurisdiction, our inquiry is limited to determining whether the basis for the district court's decision can be colorably characterized as subject-matter jurisdiction. This narrower standard applies regardless of whether the district court's decision to remand was based on an erroneous legal conclusion.

Thus, when the district court characterizes its remand as one based on subject-matter jurisdiction, our inquiry is essentially a superficial determination of plausibility. If the district court invokes subject-matter jurisdiction as the rationale for remand, and subject-matter jurisdiction was a plausible rationale for that remand, our ability to further review that remand is barred by § 1447(d).

Moody v. Great W. Ry. Co., 536 F.3d 1158, 1163 (10th Cir.2008) (citations omitted); see also Hill v. Vanderbilt Capital Advisors, LLC, 702 F.3d 1220, 1224 (10th Cir.2012) (noting that Moody establishes a “highly deferential standard”).

In this case, the district court characterized its remand as based on both waiver and lack of unanimity. Our sibling circuits are divided as to whether a remand based on waiver through participation in state court proceedings is reviewable. Compare Cogdell v. Wyeth, 366 F.3d 1245, 1248–49 (11th Cir.2004) (exercising appellate jurisdiction over waiver-based remand order) with In re Weaver, 610 F.2d 335, 337 (5th Cir.1980) (declining to review waiver-based remand order). Rather than wade into that split, we will consider only whether a remand based on lack of unanimity is reviewable. See BEPCO, L.P. v. Santa Fe Minerals, Inc., 675 F.3d 466, 470 (5th Cir.2012) (concluding that if an “independent and authorized reason for remanding [a] case to state court” exists, “the district court's remand order is unreviewable” even if another basis was also referenced by the district court).

We are largely persuaded by the Ninth Circuit's approach to this question in Atlantic National Trust LLC v. Mount Hawley Insurance Co., 621 F.3d 931 (9th Cir.2010). In that case, the court concluded that Powerex's bar applies to a remand colorably characterized as based on lack of unanimity:

Although Powerex involved a remand based on subject matter jurisdiction under § 1447(c), the Court's reasons for holding that review of the District Court's characterization of its remand should be limited to confirming that that characterization was colorable are equally applicable to remands relying on a non-jurisdictional defect. Neither the plain language of § 1447(d) nor Thermtron[ Products Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) ] ... distinguishes between orders based on jurisdictional and non-jurisdictional grounds. Moreover, appellate review of a district court's characterization of a remand based on a non-jurisdictional defect would frustrate Congress's intent to avoid interruption of the litigation of the merits of a removed case by prolonged litigation of procedural questions. And as with jurisdictional defects considered in Powerex, it is equally difficult to distinguish the line between misclassifying a ground as a defect, and correctly classifying an issue as a defect but then misapplying the law to the facts of the case. Accordingly, in

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