                                                                          FILED
                                                              United States Court of Appeals
                                     PUBLISH                          Tenth Circuit

                      UNITED STATES COURT OF APPEALS                  August 13, 2015

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

RYAN URESK HARVEY; ROCKS OFF,
INC.; WILD CAT RENTAL INC.,

      Plaintiffs - Appellees,

v.                                                    No. 14-4089

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.
                         _________________________________
                     Appeal from the United States District Court
                               for the District of Utah
                            (D.C. No. 2:13-CV-00862-DB)
                       _________________________________

Jeffrey S. Rasmussen, Fredericks Peebles & Morgan, Louisville, Colorado (Eduardo A.
Provencio, Jeremy J. Patterson, Thomas W. Fredericks, and Frances C. Bassett,
Fredericks Peebles & Morgan, Louisville, Colorado; and J. Preston Stieff, J. Preston
Stieff Law Offices, Salt Lake City, Utah, on the briefs), for Defendant-Appellant.

John D. Hancock, John D. Hancock Law Group, Roosevelt, Utah (Bradley D. Brotherson
and Clark B. Allred, Allred Brotherson & Harrington, Roosevelt, Utah, on the briefs), for
Plaintiffs-Appellees.
                        _________________________________

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

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


                                            -2-
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

                                             -3-
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 (2007), the

Court reaffirmed “that § 1447(d) should be read in pari materia with § 1447(c), so that


       1
        Defendant Scamp Excavation, Inc., did not file a consent and joinder or
otherwise appear in the federal proceeding. The parties disputed below whether that
company had been properly notified of the federal case.
       2
         The statute contains an exception for certain civil rights actions and suits against
federal officers, which is not applicable in this case. See § 1447(d) (“[A]n order
remanding a case to the State court from which it was removed pursuant to section 1442
or 1443 of this title shall be reviewable by appeal or otherwise.”).
                                             -4-
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. 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. 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

                                              -5-
       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

                                            -6-
       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 (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 light of Powerex, when a district
       court remands a case purporting to rely on a ground enumerated in
       § 1447(c), we have appellate jurisdiction to look behind the district court’s
       characterization of its basis for remand only to determine whether the
       ground was “colorable.”

Id. at 937-38 (quotation, citations, and alteration omitted). Limiting appellate review of

remand orders supports “Congress’s longstanding policy of not permitting interruption of

the litigation of the merits of a removed case.” Powerex, 551 U.S. at 238. In Powerex,

the Court also noted the desirability of avoiding “[l]engthy appellate disputes about

whether an arguable jurisdictional ground invoked by the district court was properly

such.” Id. at 234. We conclude that these considerations similarly support avoiding

lengthy disputes regarding non-jurisdictional defects.

       Lack of unanimity bears no resemblance to the basis of remand orders declared

reviewable by the Court: those resting “on grounds not specified in the statute and not

touching on the propriety of removal.” Thermtron, 423 U.S. at 352, abrogated in part on

other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15 (1996); cf.

Rothner v. City of Chicago, 879 F.2d 1402, 1422 (7th Cir. 1989) (Easterbrook, J.,

dissenting) (“Thermtron responded to the problem of the lawless judge, one who said in

                                            -7-
effect: ‘the law be damned, I can do what I want if there is no review.’”). Rather, lack of

unanimity is a procedural defect clearly established by statute as precluding removal. See

§ 1446(b)(2)(A) (requiring that “all defendants who have been properly joined and served

must join in or consent to the removal of the action”). And we have held that “[t]he

failure to comply with these express statutory requirements for removal can fairly be said

to render the removal ‘defective’ and justify a remand.” Huffman v. Saul Holdings Ltd.

P’shp, 194 F.3d 1072, 1077 (10th Cir. 1999) (quotation omitted). Accordingly, we will

not review the district court’s remand order if it can be colorably characterized as

grounded in lack of unanimity.

       The Tribe encourages us to “look behind the district court’s stated basis for its

remand,” Atl. Nat’l Trust, 621 F.3d at 940, and conduct a searching review of whether

unanimity was genuinely absent. It correctly notes that the district court reached its

conclusion as to unanimity based on a finding that some of the defendants lacked the

capacity to consent to removal because of their participation in state court proceedings.

Thus, the Tribe argues, we should examine whether the underlying rationale qualifies as a

defect under § 1447(c) rather than addressing the district court’s stated ground of

unanimity.

       Although not cited by the Tribe, one of our pre-Powerex cases takes just this

approach. In SBKC Service Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578 (10th

Cir. 1997), the district court concluded that a forum selection clause contained in a note

and deed of trust prohibited a party from joining in a notice of removal. Id. at 580.

Relying on Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273 (9th

                                            -8-
Cir. 1984), we held “that a remand based on a forum selection clause was reviewable

because it constituted a substantive decision on the merits apart from any” issue related to

removal. SBKC, 105 F.3d at 581. We further observed that appellate courts had

“disregarded a district court’s characterization of its basis for a remand order,” and

“looked instead to the substance of the court’s decision.” Id. And because the district

court’s order was based on lack of unanimity by way of a forum selection clause, we

exercised jurisdiction. Id.

       We have serious doubts about whether these aspects of SBKC survive Powerex.

The Supreme Court expressly rejected Pelleport and other Ninth Circuit cases “holding

that § 1447(d) does not preclude review of a district court’s merits determinations that

precede the remand.” Powerex, 551 U.S. at 235-36 (citing Pelleport, 741 F.3d at 276-

77). And it emphasized the limited scope of appellate scrutiny into the actual reasons for

a district court’s remand: Because “the line between misclassifying a ground . . . and

misapplying a proper ground . . . is sometimes elusively thin,” an appellate court is

“limited to confirming that [the district court’s] characterization was colorable.” Id. at

234.

       Regardless of whether SBKC remains good law, we conclude that it does not

apply in this case. In SBKC, we held that a remand order is reviewable if it is “based on

a substantive determination of contract law, rather than purely procedural issues.” 105

F.3d at 581. Prohibiting review in such cases, we stated, “would deprive litigants of the

right to an appeal on the merits.” Id. For this reason, several circuits permitted appeals

of remands based on venue clauses prior to Powerex. See id. (collecting cases). But

                                             -9-
even before Powerex, several of our sibling circuits distinguished between remand orders

based on factors extrinsic to the removal process and those intrinsic to that process.

       For instance, the Ninth Circuit has held that it lacked jurisdiction to review a

remand order based on waiver through participation in state court. Schmitt v. Ins. Co. of

N. Am., 845 F.2d 1546, 1551 (9th Cir. 1988), superseded on other grounds as stated in

Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1106 n.6 (9th Cir. 2000).

The court in Schmitt distinguished prior precedent (including Pelleport), which held that

waiver-based remand orders are reviewable:

       The critical distinction . . . is that the district court in [a prior case] based its
       finding of waiver on an adjudication of the merits of an issue presented in
       that case, i.e., whether the employee’s handbook authorized the plaintiff to
       select the forum. . . . Here, in contrast, the district court based its finding of
       waiver on an examination of the state court’s docket entries. The district
       court in the present case did not resolve any substantive matter concerning
       the merits of the dispute.

Id. at 1550-51.

       Similarly, in Hernandez v. Seminole County, 334 F.3d 1233 (11th Cir. 2003), the

Eleventh Circuit dismissed an appeal from a remand order based on lack of unanimity

even though the district court was required to interpret a contract to reach that conclusion.

Id. at 1235. Although the court acknowledged prior circuit precedent holding that a

remand order based on a forum selection clause is reviewable, id. at 1238, it held that

such review is available only if a court bases its decision on a substantive ruling

“completely external to the removal process,” id. at 1240 (quotation and emphasis

omitted). In Hernandez, however, the contractual analysis underlying the lack-of-



                                               -10-
unanimity finding was conducted “for the sole purpose of deciding whether the case was

properly removed.” Id. at 1239. 3

       We agree that this distinction is a meaningful one. To the extent SBKC retains

any force as to remand orders, it would permit us to peek under the curtain of a district

court’s characterization only to determine whether a remand order is actually based on a

substantive merits determination rather than a procedural issue intrinsic to the remand

question. See 105 F.3d at 581. In this case, the district court’s conclusion that remand

was appropriate due to lack of unanimity was plainly not based on an issue extrinsic to

the removal process. Accordingly, we decline the Tribe’s invitation to investigate

further.

       The Tribe also asks us to examine whether the district court was correct in

determining that unanimity was lacking. But under Powerex, we may not do so. See

Moody, 536 F.3d at 1165 n.2 (observing that Powerex precludes review of a remand

order colorably characterized as based on lack of subject matter jurisdiction “regardless

of whether the legal conclusion on which the district court predicated its remand order

was correct”). We examine only whether the remand order is colorably characterized as

based on lack of unanimity, not whether lack of unanimity was colorably established. In

so doing, we follow our own precedent in Moody as well as that of other circuits. See

Townsquare Media, Inc. v. Brill, 652 F.3d 767, 775-76 (7th Cir. 2011) (concluding that

colorability exists when “the district judge’s ground for dismissal was indeed absence of

       3
         The district court concluded that a non-consenting defendant was not merely a
nominal party only after reviewing the terms of a contract between that defendant and the
plaintiff. Id.
                                           -11-
subject-matter jurisdiction, no matter how great a mistake the judge had made in thinking

so,” and further observing that “it usually is easier to determine what the district court’s

. . . ground for dismissing a case was than whether it was not merely an erroneous ground

but a frivolous one”); Price v. J & H Marsh & McLennan, Inc., 493 F.3d 55, 61 (2d Cir.

2007) (“Regardless of whether the subject matter jurisdiction determination was correct

on the merits . . . the District Court’s characterization of its remand order as being based

on a lack of subject matter jurisdiction was certainly ‘colorable.’”); cf. Kircher v. Putnam

Funds Trust, 547 U.S. 633, 641 (2006) (noting that “even if it is permissible to look

beyond the court’s own label” in order to identify the basis of a remand order, the

adequacy of that basis is not reviewable).

       We have no trouble concluding that the order issued by the district court can be

colorably characterized as based on lack of unanimity. That order specifically states that

the initial defendants “waived their right . . . to consent to removal[] because they

manifested an intent to litigate in state court. Thus, the unanimity requirement cannot be

met.” Harvey v. Ute Indian Tribe of the Uintah & Ouray Reservation, No. 2:13-CV-

00862, 2014 WL 2967468, at *4 (D. Utah July 1, 2014) (unpublished). Although the

district court based its conclusion that some of the defendants had not properly consented

to removal on waiver, its analysis—which was intrinsic to the removal issue—

nevertheless resulted in a finding that unanimity was absent. Accordingly, appellate

review is precluded under Powerex.




                                             -12-
                                          III

      Because § 1447(d) precludes our review of the remand order issued by the district

court, we GRANT appellees’ motion to dismiss and DISMISS the appeal.




                                         -13-
14-4089 – Harvey v. Ute Indian Tribe

HARTZ, Circuit Judge, concurring:

       I agree that we lack jurisdiction to hear this appeal. In my view, (1) whenever the

basis (or one of the bases) of remand is a determination that there has been a defect in

removal procedure, we lack appellate jurisdiction; and (2) waiver by proceeding too fully

in state court is such a defect. This standard is very close, perhaps identical in result, to

the one adopted by the majority—namely, that we may “peek under the curtain of a

district court’s characterization [of a remand as based on lack of unanimity] only to

determine whether a remand order is actually based on a substantive merits determination

rather than a procedural issue intrinsic to the remand question.” Op. at 11 (emphasis

added). But because I arrive at my conclusion via a route different from the one taken by

the majority, I will briefly describe my reasoning.

       The governing statute states, “An order remanding a case to the State court from

which it was removed is not reviewable on appeal or otherwise,” except in certain civil-

rights cases. 28 U.S.C. § 1447(d). Despite this broad language, the Supreme Court has

“interpreted § 1447(d) to cover less than its words alone would suggest.” Powerex Corp.

v. Reliant Energy Servs., Inc., 551 U.S. 224, 229 (2007). Beginning with Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), the “Court has consistently held

that § 1447(d) must be read in pari materia with § 1447(c), thus limiting the remands

barred from appellate review by § 1447(d) to those that are based on a ground specified

in § 1447(c).” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 638 (2009).

       The current version of § 1447(c) provides:
       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 1446(a). If at any time before final judgment it
       appears that the district court lacks subject matter jurisdiction, the case shall
       be remanded.

Before its amendment in 1996, § 1447(c) contained the language “any defect in removal

procedure,” id. § 1447(c) (1995), instead of “any defect other than lack of subject matter

jurisdiction,” id. § 1447(c). Although the 1996 change would appear to expand the

grounds for remand, the Supreme Court is not so sure. In Powerex it “assume[d] for

purposes of [the] case that the amendment was immaterial to Thermtron’s gloss on

§ 1447(d)” and thus the provision “preclude[d] review only of remands for lack of

subject-matter jurisdiction and for defects in removal procedure.” 551 U.S. at 229–30. I

will make the same assumption.

       I would interpret defect in removal procedure to mean failure to comply with the

procedural requirements of federal law. One such defect is waiver by litigation. Under

the waiver-by-litigation doctrine, a defendant “waive[s] the right to remove a case to a

federal court by taking some substantial offensive or defensive action in the state court

action, indicating a willingness to litigate in the state tribunal, before filing a notice of

removal with the federal court.” 14B Charles Alan Wright, Arthur R. Miller & Edward

H. Cooper, Federal Practice and Procedure § 3721, at 105 (4th ed. 2009). The removing

party’s disqualifying conduct is like untimely removal, which the Supreme Court has said

is “precisely the type of removal defect contemplated by § 1447(c).” Things

Remembered, Inc. v. Petrarca, 516 U.S. 124, 128 (1995). In one case the remover lingers

                                                2
too long in state court; in the other, it lingers too lovingly. Whichever is the flaw, the

removal is barred because of how the removing party has proceeded in its litigation.

       The grounds for remand that the Supreme Court has held to be reviewable on

appeal are readily distinguishable, because they involved no failure by the remover to

comply with procedural requirements. The remand because of a crowded docket in

Thermtron, 423 U.S. at 343–45, 351, was not based on conduct by the removing party.

Neither was remand based on an abstention doctrine, see Quackenbush v. Allstate Ins.,

Co., 517 U.S. 706, 712 (1996), or on the district court’s decision to decline to exercise

supplemental jurisdiction over state-law claims, see Carlsbad Tech., 556 U.S. at 638–39.

       Remand based on waiver by litigation is also distinguishable from remand based

on a contractual choice-of-venue or forum-selection clause, which this court has held to

be reviewable. See Am. Soda, LLP v. U.S. Filter Wastewater Grp., Inc., 428 F.3d 921,

924 (10th Cir. 2005); SBKC Serv. Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578,

581 (10th Cir. 1997). Those grounds for remand are not failures to comply with federal

procedural requirements.

       I recognize that a divided panel of the Seventh Circuit held that it could review a

remand based on waiver by litigation. See Rothner v. City of Chicago, 879 F.2d 1402

(7th Cir. 1989). It said that § 1447(c) permitted remand only for lack of jurisdiction and

failure to comply with statutory removal requirements, and that appellate review was

barred only for remands belonging to one of those categories. See id. at 1407‒16. But

the language of § 1447(c) has since changed. The language applicable in Rothner

                                              3
permitted remand only if “the case was removed improvidently” or “without

jurisdiction.” Id. at 1406 n.2 (internal quotation marks omitted). “Improvidence” is a

vague standard that required difficult judicial construction. The present test—“defects in

removal procedure” —is more precise; and I see no reason to construe it as referring only

to violations of procedural requirements in the removal statutes. Procedure is an

amalgam of statutes, rules, and judicial constructs. I would be surprised if Congress was

thinking only of statutes and not the other components of the mix. Therefore, I would not

follow the Seventh Circuit’s lead on this issue.




                                             4
