                                                                             FILED
                                                                 United States Court of Appeals
                                      PUBLISH                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                   January 29, 2018

                                                                     Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                       Clerk of Court
                         _________________________________

ESTATE OF VERA CUMMINGS, by and
through personal representative Elicia
Montoya,

      Plaintiff - Appellee,

v.                                                         No. 17-2026

COMMUNITY HEALTH SYSTEMS,
INC.,

      Defendant - Appellant,

and

UNITED STATES OF AMERICA; LAS
CRUCES MEDICAL CENTER, d/b/a
MOUNTAIN VIEW REGIONAL
MEDICAL CENTER,

      Defendants.
                         _________________________________

                     Appeal from the United States District Court
                           for the District of New Mexico
                        (D.C. No. 1:12-CV-00081-WJ-GBW)
                       _________________________________

Michael J. Dekleva (William C. Madison and M. Eliza Stewart, with him on the briefs),
Madison, Mroz, Steinman & Dekleva, P.A., Albuquerque, New Mexico, for Defendant-
Appellant.

Lisa K. Curtis, Curtis & Lucero, Albuquerque, New Mexico (Amalia S. Lucero, Curtis &
Lucero, Albuquerque, New Mexico, and Steven L. Tucker, Tucker Law Firm, P.C., Santa
Fe, New Mexico, with her on the brief ) for Plaintiff-Appellee.
                         _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________

HARTZ, Circuit Judge.
                         _________________________________

       This is the second appeal in this litigation to come before this court. The first

appeal involved claims by the estate of Vera Cummings (the Estate) against Community

Health Systems, Inc. (CHSI) under state law, against the United States under the Federal

Tort Claims Act (FTCA), and against Mountain View Regional Medical Center

(Mountain View) under state law. We disposed of the appeal by (1) entering an order

approving the stipulated dismissal with prejudice of the appeal of the district court’s

dismissal for lack of personal jurisdiction of the claims against CHSI, (2) affirming the

district court’s dismissal of the claims under the FTCA for lack of subject-matter

jurisdiction, and (3) directing the district court to vacate its judgment in favor of

Mountain View and to remand the claims against Mountain View—but not the claims

against CHSI— to state court for lack of subject-matter jurisdiction.

        On remand to the district court, however, it went beyond our mandate by vacating

its dismissal of the claims against CHSI and remanding those claims to state court. CHSI

appealed. We reverse the order vacating the dismissal of the claims against CHSI and

remanding those claims to state court. We also reject the Estate’s motion to dismiss this

appeal for lack of jurisdiction.




                                               2
         I.     BACKGROUND

                A.      Initial Proceedings

         On January 28, 2008, Mountain View admitted Vera Cummings, who complained

of dizziness and confusion. See Estate of Cummings v. United States, 651 F. App’x 822,

824 (10th Cir. 2016) (Estate of Cummings I). After doctors at Mountain View treated her

for about 10 days, she was released to another health-care facility and died four days

later. See id. In January 2011 the Estate filed suit in New Mexico state court against

three physicians, Mountain View, and CHSI. The Estate alleged that negligent care by

Mountain View and the physicians caused Cummings’s death, and that CHSI “controlled

and operated” Mountain View and was “vicariously liable” for the negligence of the

other defendants. Aplt. App. at 37–38.

         In January 2012 the United States certified that the physicians were acting in the

scope of their employment with the United States Public Health Service (PHS) and

removed the action to the United States District Court for the District of New Mexico,

with the United States substituted for the physicians as a defendant. See 42 U.S.C.

§ 233(c) (authorizing such removal and substitution).1 After removal and substitution,



1
    The statute states in pertinent part:

                Upon a certification by the Attorney General that [a] defendant was
         acting in the scope of his employment [as a commissioned officer or
         employee of the PHS] at the time of the incident out of which the suit arose,
         any such civil action or proceeding commenced in a State court shall be
         removed . . . to the district court of the United States of the district and

                                               3
the sole remedy for the conduct of the physicians is under the FTCA. See id. at § 233(a).

       In September 2012 the district court dismissed the claims against CHSI for lack of

personal jurisdiction. The court held that exercising jurisdiction over CHSI would violate

its constitutional right to due process because “CHSI is a nonresident holding company

with no minimum contacts with New Mexico . . . .” Aplt. App. at 58. In 2014 the district

court granted Mountain View summary judgment because of the Estate’s failure to

disclose an expert report on an essential element of its claims against Mountain View.

And in February 2015 the court entered final judgment, disposing of the only remaining

claims—those against the government—for lack of subject-matter jurisdiction because

the Estate had not exhausted administrative remedies as required by the FTCA.

              B.     The First Appeal

       The Estate appealed the district court’s judgment in March 2015. Its docketing

statement listed five issues for appeal, including whether the district court had erred by

dismissing CHSI for lack of personal jurisdiction. The next month, this court scheduled a

mediation conference, see 10th Cir. Loc. R. 33.1, which was a partial success. The

parties filed a “Stipulation to Dismiss” stating that “[p]ursuant to discussions held under

Tenth Circuit Rule 33.1 . . . and the agreement of the parties, [the Estate and CHSI]

hereby stipulate that the above appeal be dismissed with prejudice as to [CHSI] only.”

Aplt. App. at 96. This court then entered an order stating that “[u]pon consideration of


       division embracing the place wherein it is pending and the proceeding
       deemed a tort action brought against the United States . . . .

42 U.S.C. § 233(c); see also id. § 233(a) (source of material concerning PHS).

                                             4
the stipulation this appeal is dismissed with respect to [CHSI] only.” Id. at 99.

       On June 7, 2016, we entered an order and judgment disposing of the remaining

issues on appeal (the First 2016 Order). The caption included the Estate as the plaintiff

and the United States and Mountain View (but not CHSI) as the defendants. We affirmed

the dismissal of the claims against the government for lack of subject-matter jurisdiction,

agreeing that (1) the doctors had been federal actors, (2) the Estate had not exhausted

administrative remedies before suing, and (3) exhaustion is a statutory jurisdictional

requirement under the FTCA. See First 2016 Order at 12. As for the claims against

Mountain View, the Estate had contended that “[s]hould this court affirm the district

court’s dismissal of the case for lack of subject matter jurisdiction, . . . it must extinguish

all rulings in the case and remand the case against Mountain View to New Mexico state

district court.” Aplt.’s Opening Br. at 27, Estate of Cummings I (10th Cir. July 15, 2015).

We agreed. Our opinion concluded with the following dispositional language:

               The dismissal of the federal claims is AFFIRMED. The district
       court’s rulings on the supplemental claims are VACATED with instructions
       to the district court to remand to New Mexico state court.

First 2016 Order at 13 (emphasis added).

       Two weeks later, Mountain View asked this court “to clarify and confirm that the

claims against [CHSI] have not been remanded to New Mexico state court.” Aplt. App.

at 105. It asserted that because the Estate voluntarily dismissed with prejudice its appeal

as to CHSI, “the Court lacked jurisdiction under 28 U.S.C. § 1291 to hear an appeal of

the district court’s order dismissing CHSI for lack of personal jurisdiction” and “could

not have remanded the claims against CHSI to state court.” Id. at 107. On June 24 this


                                               5
court entered an order granting this request by changing the dispositional language to

read:

               The dismissal of the federal claims is AFFIRMED. The district
        court’s rulings on the supplemental claims against Mountain View are
        VACATED with instructions to the district court to remand to New Mexico
        state court.

Estate of Cummings, 651 F. App’x at 828 (emphasis added). Mandate issued on August

30, 2016.

              C.     District-Court Proceedings on Remand

        Complying with the mandate, the district court entered an order on August 31,

2016, stating that “the Clerk of Court shall REMAND [the Estate’s] claims against

[Mountain View]” to New Mexico state court “as directed by the Tenth Circuit Court of

Appeals.” Aplt. App. at 70. But that did not end the district court’s involvement with the

case. More than four months later, on January 19, 2017, Mountain View asked the

district court for a temporary restraining order and a preliminary injunction. It

represented that the Estate was pursuing its claims against CHSI in state court and

requested an injunction barring the Estate from “prosecuting [the remanded case] against

[CHSI]” or “filing further suits or prosecuting further litigation against CHSI in the State

of New Mexico.” Id. at 71. Injunctive relief was allegedly needed “to prevent the Estate

from relitigating the personal jurisdiction issue that [the district court had] already

decided.” Id.; see 28 U.S.C. § 2283 (permitting a federal court to enjoin state-court

proceedings “where necessary in aid of its jurisdiction, or to protect or effectuate its

judgments”); Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 150–51 (1988) (federal



                                               6
district court could enjoin state court from considering state-law claim whose validity had

already been adjudicated by the federal court); Ute Indian Tribe of the Uintah & Ouray

Reservation v. Utah, 790 F.3d 1000, 1007–09 (10th Cir. 2015) (remanding to district

court with instructions to enjoin state prosecution being pursued contrary to prior federal-

court decision that certain lands are Indian country).

       On January 25, 2017, the district court denied Mountain View’s request,

explaining that it lacked subject-matter jurisdiction to consider the merits of the motion.

It then entered the order that is the subject of this appeal. It sua sponte decided to vacate

its earlier dismissal of the claims against CHSI and remanded those claims to state court.

It said that “[u]nder its inherent jurisdiction” it needed to “attend to a piece of this case”

that had been “left behind and inadvertently overlooked.” Aplt. App. at 135. Because

“[i]t ha[d] been definitively decided that this Court lacks subject matter jurisdiction over

this entire case, including all supplemental state law claims,” the court stated that “in

addition to vacating its ruling on the Mountain View claims, the Court should have also

vacated its rulings on the CHSI claim[s] and remanded them” to state court. Id. at 134.

The order declared that the court’s “prior rulings on the supplemental claims asserted

against CHSI . . . are hereby VACATED,” and it directed the clerk to send the New

Mexico state court a copy of the order. Id. at 136–37. It also entered a judgment stating

that “the Clerk of Court shall REMAND [the Estate’s] claims against Defendant

Mountain View and CHSI.” Id. at 138.

       CHSI filed a notice of appeal, challenging both the vacation of the prior dismissal

of the claims against it and the remand of those claims to state court. The Estate has


                                               7
moved to dismiss the appeal on the ground that 28 U.S.C. § 1447(d) deprives this court of

jurisdiction to review the remand order. We hold that we have jurisdiction and reverse.

       II.    DISCUSSION

       Although we should not opine on the merits of an appeal over which we lack

jurisdiction, we think that addressing the merits first (knowing that we will later explain

why we have jurisdiction) will facilitate our later discussion of the jurisdictional issue.

              A.     The Merits of the District Court’s Decision

       The district court’s decision to vacate its personal-jurisdiction dismissal of the

claims against CHSI and to remand the claims to state court makes sense on its face. But

the decision was based on two false assumptions—that the district court had not had

jurisdiction to dismiss CHSI for lack of personal jurisdiction and that the district court

had authority after our remand to reconsider the dismissal.

       The first error was to assume that only a court with subject-matter jurisdiction can

address personal jurisdiction. The district court’s decision to reinstate and remand the

CHSI claims rested on this assumption. See Aplt. App. at 134 (court’s lack of subject-

matter jurisdiction “means that . . . Court should have also vacated its rulings on the

CHSI claim and remanded [the claim] to state court”).

       The assumption is contrary to precedent. The Supreme Court and this court have

repeatedly held that a federal court need not address its jurisdiction when it can dismiss

the case on another ground that does not require determining the merits. For example, in

Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007), the Court

said that “[a] district court . . . may dispose of an action by a forum non conveniens


                                              8
dismissal, bypassing questions of subject-matter and personal jurisdiction, when

considerations of convenience, fairness, and judicial economy so warrant.” Id. at 432.

And this court has followed Sinochem in other contexts. See Citizen Ctr. v. Gessler, 770

F.3d 900, 906 (10th Cir. 2014) (addressing mootness before standing, explaining that

“[b]ecause there is no mandatory sequencing of nonmerits issues, we have leeway to

choose among threshold grounds for denying audience to a case on the merits” (brackets

and internal quotation marks omitted)); Valenzuela v. Silversmith, 699 F.3d 1199, 1205

(10th Cir. 2012) (addressing failure to exhaust rather than mootness); see also Gadlin v.

Sybron Int’l Corp., 222 F.3d 797, 799 (10th Cir. 2000) (before Sinochem, stating that

court can address personal jurisdiction before subject-matter jurisdiction).

       Indeed, in Ruhrgas A.G. v. Marathon Co., 526 U.S. 574 (1999), the Supreme

Court approved a district court’s decision to address personal jurisdiction before subject-

matter jurisdiction in a case, like this one, that involved removal. Several companies had

sued Ruhrgas in Texas state court. See id. at 579. Ruhrgas removed the dispute,

asserting various grounds of federal jurisdiction. It then moved for dismissal based on

lack of personal jurisdiction, while the plaintiffs filed a motion to remand back to the

state court, arguing lack of subject-matter jurisdiction. See id. at 579–80. The district

court dismissed the case for lack of personal jurisdiction without addressing subject-

matter jurisdiction. See id. at 580.

       To fully appreciate the Supreme Court’s ruling, it is helpful to review the

thoughtful Fifth Circuit opinion that reversed the district court and was then itself

reversed in turn. Sitting en banc on appeal, a closely divided Fifth Circuit held that, “at


                                              9
least in removed cases, district courts should decide issues of subject-matter jurisdiction

first,” reaching personal jurisdiction “only if subject-matter jurisdiction is found to exist.”

Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211, 214 (5th Cir. 1998). This holding was

founded on the court’s perception of fundamental differences in theory and effect

between personal jurisdiction and subject-matter jurisdiction. First, “[w]hen a federal

court acts outside its statutory subject-matter jurisdiction, it violates the fundamental

constitutional precept of limited federal powers.” Id. at 216 (internal quotation marks

omitted). Personal jurisdiction, in contrast, “flows not from [Article] III, but from the

Due Process Clause,” and represents “a restriction on the judicial power not as a matter of

sovereignty, but as a matter of individual liberty,” so, unlike the defense of lack of

subject-matter jurisdiction, the defense of lack of personal jurisdiction can be waived or

even estopped. Id. at 217 (internal quotation marks omitted). The second distinction was

related to federalism concerns that can arise when a case has been removed from state

court if the federal court dismisses for lack of personal jurisdiction:

       [I]n the removal context, when a federal district court that lacks federal
       subject-matter jurisdiction dismisses instead for want of personal
       jurisdiction, it impermissibly wrests that decision from the state courts.
       This follows from the fact that because, after remand, such a case would
       have to remain within the state courts, questions of personal jurisdiction
       necessarily would fall within the state courts’ exclusive, residual
       jurisdiction. Those courts are entitled to their own, independent—and
       absent a controlling Supreme Court decision—even conflicting
       interpretation of their state’s long-arm statute and of the minimum contacts
       requirements of the federal Due Process Clause.

Id. at 218. But, said the court, those concerns do not arise when the federal court

dismisses for lack of subject-matter jurisdiction:



                                              10
              A federal court’s decision that it lacks subject-matter jurisdiction, by
       contrast, returns the case to the state court so that it can adjudicate or
       dismiss. That decision does not intrude on the power reserved to the states,
       under the Constitution, to provide for the determination of controversies in
       their courts.

Id. at 219 (citation, brackets, and internal quotation marks omitted).

       The Supreme Court disagreed. It recognized that “[t]he character of the two

jurisdictional bedrocks unquestionably differs,” but, it said, “[t]hese distinctions do not

mean that subject-matter jurisdiction is ever and always the more ‘fundamental.’”

Ruhrgas, 526 U.S. at 583–84. Indeed, a challenge to personal jurisdiction may rely “on

the constitutional safeguard of due process,” whereas “the impediment to subject-matter

jurisdiction . . . [may] rest[] on statutory interpretation, not constitutional command.” Id.

at 584 (emphasis added). Nor do federalism concerns result only from personal-

jurisdiction dismissals. Although the Court agreed that “[i]f a federal court dismisses a

removed case for want of personal jurisdiction, that determination may preclude the

parties from relitigating the very same personal jurisdiction issue in state court,” it

observed that “[i]ssue preclusion in subsequent state-court litigation . . . may also attend a

federal court’s subject-matter determination.” Id. at 585. The Court concluded that while

“[a] State’s dignitary interest bears consideration when a district court exercises

discretion in a case of this order,” in some cases “concerns of judicial economy and

restraint are overriding” and make it proper to address personal jurisdiction first. Id. at

586. “The federal design allows leeway for sensitive judgments of this sort.” Id. at 587.

       Thus, in this case the district court had properly exercised its sound discretion in

ruling initially (before the appeal to this court) that it could address personal jurisdiction


                                              11
over CHSI before resolving subject-matter jurisdiction. Even when there is a question of

subject-matter jurisdiction lurking in the case that may well have to be resolved with

respect to other parties, a straightforward determination that the court lacks personal

jurisdiction over a party may be appropriate. After all, the party over which there is no

personal jurisdiction should not have to participate at all in the litigation in that forum. A

court sensitive to that concern is not abusing its discretion when it decides to relieve the

improper party of the burden of participation for what may be a lengthy period (here,

more than two years) before resolution of subject-matter jurisdiction. When the district

court vacated its earlier personal-jurisdiction ruling, it incorrectly based that ruling on an

assumed mandatory jurisdictional hierarchy. One can ask why a court without personal

jurisdiction can dismiss for lack of subject-matter jurisdiction but a court without subject-

matter jurisdiction cannot dismiss for lack of personal jurisdiction.

       To be sure, ordinarily a district court may revise a ruling disposing of one claim at

any time before entering final judgment on all claims. See Fed. R. Civ. P. 54(b). A

district court that has dismissed one of several parties for lack of personal jurisdiction

may revisit its ruling after determining that it also lacked subject-matter jurisdiction and

then decide to vacate the personal-jurisdiction ruling. But we need not discuss the

various considerations that might recommend one course or the other because that option

was not available to the district court in this case. This brings us to the second error in

vacating the personal-jurisdiction dismissal.

       That error was to assume that our remand after the first appeal permitted the

district court to reconsider its earlier personal-jurisdiction dismissal. Our mandate did


                                              12
not convey that authority. To begin with, although the Estate’s appeal in this court

originally included a challenge to the personal-jurisdiction dismissal, the Estate later

stipulated to dismissal with prejudice of its appeal with respect to CHSI, and this court

entered an order of dismissal. That ended the matter. When we issued our order and

judgment in the appeal, we did not include CHSI in the caption and we did not authorize

the district court to take any further action regarding CHSI. Our original opinion vacated

the district court’s rulings “on the supplemental claims . . . with instructions to the district

court to remand to New Mexico state court,” First 2016 Order at 13, but the only

“supplemental claims” before us at that time were the claims against Mountain View.

Indeed, the Estate’s opening brief on appeal (filed two days before the parties filed their

stipulated dismissal of the appeal on the CHSI claims) had urged only “remand [of] the

case against Mountain View to New Mexico state district court” if we affirmed the

dismissal of the claims against the United States for lack of subject-matter jurisdiction.”

Aplt.’s Opening Br. at 27, Estate of Cummings I (10th Cir. July 15, 2015). Finally, to

eliminate any vestige of ambiguity we revised the dispositional paragraph of our opinion

at the urging of Mountain View, which expressly requested clarification that the district

court was not to remand the claims against CHSI, so that we now vacated only the

“rulings on the supplemental claims against Mountain View.” Estate of Cummings I, 651

F. App’x at 828.

       A lower court is “bound to carry the mandate of the upper court into execution and

[cannot] consider the questions which the mandate laid at rest.” Sprague v. Ticonic Nat’l

Bank, 307 U.S. 161, 168 (1939); accord Ins. Grp. Comm. v. Denver & Rio Grande W.


                                              13
R.R. Co., 329 U.S. 607, 612 (1947) (“When matters are decided by an appellate court, its

rulings, unless reversed by it or a superior court, bind the lower court.”); Bryan A. Garner

et al., The Law of Judicial Precedent § 55 at 459 (2016) (Law of Judicial Precedent)

(“When a case has been heard and determined by an appellate court, the legal rules and

principles laid down as applicable to it bind the trial court in all further proceedings in the

same lawsuit. They cannot be reviewed, ignored, or departed from.”). Failing to raise an

issue on appeal, or abandoning an issue that was initially raised, has the same

consequences for that litigation as an adverse appellate ruling on that issue. Thus, the

mandate rule applies not only to issues on which the higher court has ruled but also

“forecloses litigation of issues decided by the district court but [forgone] on appeal or

otherwise waived.” Doe v. Chao, 511 F.3d 461, 466 (4th Cir. 2007) (internal quotation

marks omitted); see United States v. Husband, 312 F.3d 247, 250 (7th Cir. 2002) (“[A]ny

issue that could have been but was not raised on appeal is waived and thus not

remanded.”); id. at 251 (“Parties cannot use the accident of remand as an opportunity to

reopen waived issues.” (brackets and internal quotation marks omitted)).

       We review de novo whether a district court complied with our mandate. See

Vehicle Mkt. Research, Inc. v. Mitchell Int’l, Inc., 839 F.3d 1251, 1256 (10th Cir. 2016).

We examine whether the issue is foreclosed “either explicitly or by necessary

implication.” Guidry v. Sheet Metal Workers Int’l Ass’n, Local No. 9, 10 F.3d 700, 705

(10th Cir. 1993), abrogated in part on other grounds on reh’g, 39 F.3d 1078 (10th Cir.

1994) (en banc).

       Our analysis can be brief. The Estate explicitly abandoned “with prejudice” its


                                              14
challenge on appeal to the personal-jurisdiction dismissal of CHSI. And nothing in our

opinion resolving the appeal gave the district court leeway to do anything but execute the

ministerial duty of vacating its rulings on the supplemental claims against Mountain

View and remanding them to state court. Indeed, making this crystal clear was the very

purpose of our revision to our dispositional language specifying that only the claims

against Mountain View were to be remanded. Our mandate barred any further action

with respect to the claims against CHSI. Even if we erred in that regard, district courts

are not authorized to correct our errors.

       We conclude that it was improper to vacate the dismissal of CHSI and to remand

the claims against CHSI to the state court. We now explain why we have jurisdiction to

reverse those rulings.

       B.     Jurisdiction to Review the District Court’s Decision

       The Estate contends that even if the remand of the claims against CHSI to state

court was improper, this court lacks jurisdiction to review the remand. To resolve this

issue, we consider two subsections of 28 U.S.C. § 1447 and cases construing them. The

pertinent language of § 1447(c) is:

       A motion to remand the case on the basis of any defect other than lack of
       subject matter jurisdiction must be made within 30 days after the filing of
       the notice of removal under section 1446(a). If at any time before final
       judgment it appears that the district court lacks subject matter jurisdiction,
       the case shall be remanded.

28 U.S.C. § 1447(c) (emphasis added). And the language of subsection (d) is: “An order

remanding a case to the State court from which it was removed is not reviewable on

appeal or otherwise, except [when the case was removed under one of two statutes not


                                             15
applicable here].” Id. § 1447(d).

       The language of § 1447(d) appears to be categorical, forbidding any review of the

remand order in this case. The Supreme Court, however, has limited the restriction in

§ 1447(d) to only those remands that are colorably authorized by § 1447(c), and the

district court’s remand in this case does not satisfy that requirement because it was

ordered after final judgment.

       The leading case is Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336

(1976).2 After two Kentucky residents sued an Indiana corporation and an Indiana

resident in Kentucky state court, the defendants removed the case to federal district court.

See id. at 337–38. Stating that its docket was jammed for the foreseeable future and that

state-court resolution would likely be faster, the district court ordered the defendants to

explain why remand would be inappropriate. See id. at 339. Unsatisfied with the

response, the district court remanded the case. See id. at 341. The defendants petitioned

the Sixth Circuit for a writ of mandamus, but that court denied the petition, citing

§ 1447(d). See id. at 341–42.

       The Supreme Court reversed. See id. at 342. The Court stated that § 1447(d) “is

not dispositive of the reviewability of remand orders in and of itself”; rather, it “must be

construed together” with § 1447(c). Id. at 345. Doing so, the Court concluded that “only

remand orders issued under § 1447(c) and invoking the grounds specified therein . . . are

2
   Although the language of § 1447 has been tweaked over the years, the Supreme Court
thus far has assumed that the changes in the language do not affect the analysis and
conclusions in Thermtron or the Supreme Court cases following it. See Powerex Corp. v.
Reliant Energy Servs., Inc., 551 U.S. 224, 229–30 (2007); see also Carlsbad Tech., Inc.,
v. HIF Bio, Inc., 556 U.S. 635, 638 (2009).

                                             16
immune from review under § 1447(d).” Id. at 346. Although § 1447(d) “prohibits

review of all remand orders issued pursuant to § 1447(c) whether erroneous or not,” id. at

343, the district court’s remand ground—docket burdens—was not a § 1447(c) ground

and hence the remand was reviewable. See id. at 343–44.

       The Court recognized that the purpose of § 1447(d) was to “prevent delay in the

trial of remanded cases by protracted litigation of jurisdictional issues.” Id. at 351. But

this purpose, it said, should not bar review when a district judge has “remanded a

properly removed case on grounds that he had no authority to consider.” Id. The Court

was concerned that without this limitation on the denial of reviewability, the district

courts could be, as in that case, utterly lawless. The Court was “not convinced that

Congress ever intended to extend carte blanche authority to the district courts to revise

the federal statutes governing removal by remanding cases on grounds that seem

justifiable to them but which are not recognized by the controlling statute.” Id. at 350.

And it noted that the Court had “not yet construed the present or past prohibition against

review of remand orders so as to extinguish the power of an appellate court to correct a

district court that has not merely erred in applying the requisite provision for remand but

has remanded a case on grounds not specified in the statute and not touching the

propriety of the removal.” Id. at 352.

       Following Thermtron, the Supreme Court has not permitted review by appellate

courts of remand orders colorably authorized by § 1447(c)—namely, remands for lack of

jurisdiction, see Powerex Corp., 551 U.S. at 234 (ground of remand was “colorably

characterized as subject-matter jurisdiction”), or for defects in removal procedure, see


                                             17
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 128 (1995) (remanded because

removal was untimely). But appellate courts can review remands based on other

grounds, such as the district court’s discretionary decision to decline to exercise

supplemental jurisdiction over state-law claims, see Carlsbad Tech., Inc., 556 U.S. at

638–41, or its decision to abstain under Burford v. Sun Oil Co., 319 U.S. 315 (1943), see

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 710–11 (1996). Recently, we followed

this line of cases in holding that we could review a district court’s remand based on its

determination that the removing party had waived its right to removal. See City of

Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1091–98 (10th Cir. 2017).

       In our view, Thermtron and its successors authorize review of the remand order in

this case. Section 1447(c) authorizes remand for lack of subject-matter jurisdiction only

“at any time before final judgment.” The district court in this case issued its remand

order after final judgment. The order was therefore on its face not a remand under

§ 1447(c) and is reviewable.

       The Fifth Circuit addressed this issue in In re Carter, 618 F.2d 1093, 1097–100

(5th Cir. 1980). In that case a Georgia resident sued an international union and its local

affiliate in state court, claiming that union representatives had conspired to deprive him

of employment and to impugn his reputation. See id. at 1096–97. The local answered,

but the international did not, eventually leading to a default judgment against the

international. See id. at 1097. The plaintiff dismissed the local so that the state-court

trial considered only damages against the international, which the jury awarded. See id.

The international appealed, claiming it had never been properly served, and the Georgia


                                             18
Supreme Court agreed and reversed. When the plaintiff later effected proper service on

the international, the international removed the case to federal court, asserting federal-

question jurisdiction. See id. The plaintiff’s complaint itself did not explicitly assert any

federal cause of action, and he indicated to the district court that he was pursuing only

state-law causes of action; but the case was not remanded to state court. See id. After a

jury trial led to a verdict for plaintiff and the district court entered a final judgment, the

international moved to vacate the judgment, claiming the district court lacked subject-

matter jurisdiction. See id. Agreeing that it lacked jurisdiction, the district court vacated

the judgment and remanded the case to Georgia state court. See id. The plaintiff then

petitioned the Fifth Circuit for a writ of mandamus to review the remand order. See id.

       The Fifth Circuit determined that notwithstanding § 1447(d), it could review the

order. See id. at 1098–100. Because the order issued not before final judgment, but after

it, the Fifth Circuit concluded that the remand order was not a remand under § 1447(c).

See id. at 1099–100; see also id. at 1098 n.3 (observing that previous versions of the

statute allowed remands “at any time”). And given Thermtron’s linkage of § 1447(c) and

§ 1447(d), § 1447(d) did not apply. The court persuasively analyzed the policy

supporting this exception to § 1447(d) for remand orders entered after a final judgment,

saying that the “considerations of prompt and efficient judicial resolution of substantive

controversies that inform a rule of nonreviewability of remand orders issued before final

judgment in a removed case do not apply with the same force to remand orders issued

subsequent to entry of final judgment in a removed case.” Id. at 1099. It stated:

       Whereas before final judgment the nonreviewability of remand orders


                                               19
       serves to ensure the expeditious resolution of the case in a court of
       competent jurisdiction—the court in which the action was originally filed—
       and to minimize the expenditure of scarce federal judicial resources at the
       appellate level, once a case has been fully tried in a federal court and a final
       judgment entered, the equation alters markedly.

Id. Improper remand after judgment, it said, can result in significant waste:

       Federal judicial resources, once expended upon the trial of a cause,
       obviously cannot be recouped by relitigation in a state court. An order of
       remand after entry of final judgment no longer fosters prompt resolution of
       the merits of the case, but serves instead only to delay final resolution by
       subjecting the litigants to a second, and the state court to a possibly
       duplicative, trial of the same matter.

Id. Therefore, “[e]xtending the prohibition of review in [§ 1447(d)] to a remand order

entered outside the time frame specified in [§ 1447(c)] . . . promotes not at all the

congressional policy that is the foundation of [§ 1447(d)] and can only compound

unnecessarily the undesirable consequences that ineluctably accompany any rule which

makes a possible judicial error unreviewable.” Id. The court observed that a remand

after final judgment by a district court “is more closely akin to a remand of a removed

case ordered by an appellate court than it is to a remand by the trial court before a final

judgment has been rendered.” Id. at 1100. And it pointed out that “[r]emands ordered by

appellate courts returning removed cases to state courts have never been presumed to

come within the bar of § 1447(d) or its predecessors.” Id. (citing Willingham v. Morgan,

395 U.S. 402, 404 (1969); Aetna Cas. & Sur. Co. v. Flowers, 330 U.S. 464, 467 (1947);

and Gay v. Ruff, 292 U.S. 25, 30 (1934)).

       We agree with this reasoning and hold that the § 1447(d) reviewability bar does

not apply to remand orders entered by a district court after final judgment.



                                             20
       There remains only the question whether the district court’s order remanding the

claims against CHSI was “before final judgment.” 28 U.S.C. § 1447(c). We are not

aware of any precedent that defines the term final judgment in § 1447(c). The context in

which courts most frequently address the meaning of finality is when an appellate court is

addressing whether a district-court decision is appealable under the final-judgment rule of

28 U.S.C. § 1291, which limits appeals to “final decisions.” In that context, a decision is

final if it “ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). We recently

said that a decision was final when it left “only a ministerial task.” Tennille v. W. Union

Co., 774 F.3d 1249, 1253 (10th Cir. 2014). Similarly, in determining whether a state-

court decision was a final judgment reviewable by the Supreme Court, the Court has said

that “if nothing more than a ministerial act remains to be done, such as the entry of a

judgment upon a mandate, the decree is regarded as concluding the case and is

immediately reviewable.” Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 68

(1948).

       But a formal definition of finality that can mechanically be applied in all

circumstances is unattainable. The purpose being served by the term must always be

considered. As the Supreme Court has repeatedly noted in the context of § 1291,

“finality is to be given a practical rather than a technical construction.” Microsoft Corp.

v. Baker, 137 S. Ct. 1702, 1712 (2017) (internal quotation marks omitted).

       In the context of district-court action after an appeal, sometimes it is

straightforward whether a decision comes after a final judgment. In this litigation, the


                                              21
first appeal—which was brought by the Estate—was from a final judgment of the district

court. If we had affirmed that judgment in full, there would be no reason to treat the case

after remand as having a different status for purposes of § 1447(c) than if there had been

no appeal. There could be no debate that a later order by the district court vacating its

dismissal of CHSI and remanding the claims against CHSI to state court would have been

after final judgment. On the other hand, if we had reversed and remanded with directions

to the district court to conduct further proceedings—such as an evidentiary hearing to

determine whether the physician defendants were actually working for the Public Health

Service or whether the Estate had submitted a timely notice of claim—then a judgment

entered by the district court after conducting such proceedings would be a new final

judgment.

       What did happen, however, was we affirmed the district court in part and reversed

and remanded with instructions to that court to perform what can only be characterized as

ministerial tasks, requiring the exercise of no discretion by the district court whatsoever.

The judgment of this court instructing the district court precisely what to do is about as

final as it gets. In terms of the role of the district court after remand, it had as little

independent responsibility as if we had affirmed in full. Any further action by the district

court beyond executing the ministerial tasks required by our mandate would be as much

after final judgment as action taken by the district court after its original final judgment

had it not been appealed.3


3
  The Estate argues that the district court’s order remanding the claims against CHSI to
state court satisfied § 1447(c) because that remand was the final judgment. But § 1447(c)

                                                22
       The same pragmatic reasons described by the Fifth Circuit in Carter as supporting

review of district-court remand decisions made after the district court has disposed of a

case in a final judgment also support our review in this case. Appellate review can avoid

wasteful, duplicative litigation in state court. And there is another reason, one

fundamental to the hierarchical nature of the courts, for treating this court’s judgment on

the first appeal—which left nothing further to the discretion of the district court—as the

“final judgment” after which a district-court remand order would be reviewable. It is

essential that district courts comply with our mandates. “For appellate review to be

meaningful, the decisions of the appellate court must bind the lower court on remand.

Even if the appellate court may be incorrect, finality and the structure of the system

require adherence to its decisions.” Law of Judicial Precedent § 55 at 459; see also 18B

Charles Alan Wright et al., Federal Practice and Procedure § 4478.3 at 733 (2d ed. 2002)

(“[A]n inferior tribunal is bound to honor the mandate of a superior court within a single

judicial system. There is nothing surprising about the basic principle, which inheres in

the nature of judicial hierarchy . . . .”). If the need for finality justifies the restriction in §

1447(c) on remands after district-court entry of final judgment in the first instance, that

need is magnified when a federal appellate court has fully and finally disposed of federal

consideration of the litigation.4

       III.    CONCLUSION

authorizes removal only “before final judgment.” And the Estate’s argument proves too
much. If a remand order issued after what would otherwise be a final judgment would
satisfy § 1447(c), then a remand order would never run afoul of the “before” requirement.
4
  In light of our disposition, there is no need for us to address CHSI’s contention that the
district court’s January 2017 order and judgment violated CHSI’s due-process rights.

                                                23
       The Estate’s motion to dismiss the appeal is DENIED and the district court’s

January 2017 order and judgment vacating the dismissal of the claims against CHSI and

remanding those claims to state court is REVERSED. We REMAND this case to the

district court solely for the purpose of ruling on CHSI’s request for injunctive relief with

respect to the pending state proceedings. We DENY as moot CHSI’s motion for

expedited consideration.




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