                       ON REHEARING EN BANC

                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-1839


JOYCE BARLOW,

                Plaintiff - Appellee,

          v.

COLGATE PALMOLIVE COMPANY,

                Defendant – Appellant,

          and

JOHN CRANE−HOUDAILLE, INCORPORATED; E.L. STEBBING & COMPANY,
INC.; HAMPSHIRE INDUSTRIES, INC., f/k/a John H. Hampshire
Company;   UNIVERSAL   REFRACTORIES  COMPANY;   J.H.   FRANCE
REFRACTORIES COMPANY; THE GOODYEAR TIRE & RUBBER COMPANY,
f/k/a Kelly Springfield Tire Company; MCIC, INC., and its
remaining Director Trustees, Robert I. McCormick, Elizabeth
McCormick and Patricia Schunk; CBS CORPORATION, a Delaware
Corporation f/k/a Viacom, Inc., Successor by merger to CBS
Corporation, a Pennsylvania Corporation, f/k/a Westinghouse
Electric Corporation; METROPOLITAN LIFE INSURANCE COMPANY;
A.W.    CHESTERTON    COMPANY;    CERTAINTEED    CORPORATION,
individually and as successor to Bestwall Gypsum Co.; KAISER
GYPSUM    COMPANY,   INC.;    UNION   CARBIDE    CORPORATION;
INTERNATIONAL PAPER COMPANY, individually and as successor
in interest to Champion International Corporation and U.S.
Plywood Corp.; BAYER CROPSCIENCE, INC., individually and as
successor in interest to Benjamin Foster Co., Amchem
Products, Inc., H.B. Fuller Co., Aventis CropScience USA,
Inc., Rhone−Poulenc AG Company, Inc., Rhone−Poulenc, Inc.
and Rhodia, Inc.; COOPER INDUSTRIES, INC., individually and
as successors in interest to Crouse Hinds Co.; PFIZER
CORPORATION; SCHNEIDER ELECTRIC USA, INC., f/k/a Square D
Company, individually and as successor in interest to
Electric Controller and Manufacturing Co.; GEORGIA−PACIFIC,
LLC, individually and as successor to Bestwall Gypsum Co.;
FOSTER WHEELER CORPORATION; THE WALLACE & GALE ASBESTOS
SETTLEMENT TRUST; CONWED CORPORATION; GENERAL ELECTRIC
COMPANY; GEORGIA PACIFIC CORPORATION, individually and as
successor in interest to Bestwall Gypsum Co.,

                  Defendants.



                                No. 13-1840


CLARA G. MOSKO,

                  Plaintiff - Appellee,

          v.

COLGATE PALMOLIVE COMPANY,

                  Defendant – Appellant,

          and

JOHN CRANE−HOUDAILLE, INCORPORATED; E.L. STEBBING & CO.,
INCORPORATED; HAMPSHIRE INDUSTRIES, INC., f/k/a John H.
Hampshire Company; UNIVERSAL REFRACTORIES COMPANY; J.H.
FRANCE REFRACTORIES COMPANY; THE GOODYEAR TIRE & RUBBER
COMPANY, f/k/a Kelly Springfield Tire Company; MCIC, INC.,
and its remaining Director Trustees, Robert I. McCormick,
Elizabeth McCormick and Patricia Schunk; CBS CORPORATION, a
Delaware Corporation f/k/a Viacom, Inc., f/k/a Westinghouse
Electric Corporation; METROPOLITAN LIFE INSURANCE COMPANY;
A.W.    CHESTERTON    COMPANY;    CERTAINTEED   CORPORATION,
individually and as successor to Bestwall Gypsum Co.; KAISER
GYPSUM    COMPANY,   INC.;    UNION   CARBIDE   CORPORATION;
INTERNATIONAL PAPER COMPANY, individually and as successor
in interest to Champion International Corporation and U.S.
Plywood Corp.; BAYER CROPSCIENCE, INC., individually and as
successor in interest to Benjamin Foster Co., Amchem
Products, Inc., H.B. Fuller Co., Aventis CropScience USA,
Inc., Rhone−Poulenc AG Company, Inc., Rhone−Poulenc, Inc.
and Rhodia, Inc.; COOPER INDUSTRIES, INC., individually and
as successors in interest to Crouse Hinds Co.; PFIZER
CORPORATION; SCHNEIDER ELECTRIC USA, INC., f/k/a Square D
Company, individually and as successor in interest to

                                     2
Electric Controller and Manufacturing Co.; FOSTER WHEELER
CORPORATION; THE WALLACE & GALE ASBESTOS SETTLEMENT TRUST;
CONWED CORPORATION; GEORGIA−PACIFIC, LLC, individually and
as   successor   to  Bestwall    Gypsum  Co.;   3M    COMPANY;
MALLINCKRODT, INC.; CROWN, CORK & SEAL CO., INC.; KOPPERS
COMPANY, INC.; WALTER E. CAMPBELL CO., INC.; KRAFFT−MURPHY
COMPANY, individually and as successor to National Asbestos
Company, a dissolved Delaware Corporation; AC&R INSULATION
CO., INC.; COTY, INC.; JOHNSON & JOHNSON; LUZENAC AMERICA
INC.; R.T. VANDERBILT COMPANY, INC.; BAYER CORPORATION, as
successor   in  interest   to   Sterling  Drug,    Inc.,   and
Sterling−Winthrop Inc.; GENERAL ELECTRIC COMPANY,

                Defendants.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.       William M. Nickerson, Senior
District Judge. (1:12-cv-01780-WMN; 1:12-cv-01781-WMN)


Argued:   September 18, 2014         Decided:   November 25, 2014


Before NIEMEYER, KING, SHEDD, DUNCAN, WYNN, DIAZ, and FLOYD,
Circuit Judges, and DAVIS, Senior Circuit Judge.


Reversed and remanded by published opinion.   Judge Floyd wrote
the opinion, in which Judges Niemeyer, King, Shedd, Duncan, and
Diaz joined. Judge Wynn wrote a separate opinion concurring in
part and dissenting in part.      Senior Judge Davis wrote a
dissenting opinion.


ARGUED: Faith Elizabeth Gay, QUINN, EMANUEL, URQUHART &
SULLIVAN, LLP, New York, New York, for Appellant. Jeffrey John
Utermohle, LAW OFFICES OF PETER G. ANGELOS, Baltimore, Maryland,
for Appellees.   ON BRIEF: Thomas P. Bernier, SEGAL MCCAMBRIDGE
SINGER & MAHONEY, Baltimore, Maryland; William B. Adams, QUINN
EMANUEL URQUHART & SULLIVAN, LLP, New York, New York, for
Appellant.   Jennifer L. Lilly, Thomas Kelly, Craig Silverman,
LAW OFFICES OF PETER G. ANGELOS, Baltimore, Maryland, for
Appellees.



                                3
FLOYD, Circuit Judge:

     This       appeal     involves       the    interplay       between        28    U.S.C.

§ 1447(d), which prohibits federal courts from reviewing orders

remanding       cases    to    state   court,      and    Federal       Rules    of       Civil

Procedure       11   and      60(b)(3),    which    provide       means    for       federal

courts to remedy and deter the perpetration of fraud on the

courts.     Despite strong evidence that the plaintiffs in these

consolidated         actions     misrepresented          their    intent        to    pursue

claims against certain defendants, the lower court found that

§ 1447(d) deprived it of jurisdiction to either impose certain

sanctions under Rule 11 or afford relief under Rule 60(b)(3).

Because    we    conclude       that   using     these    rules    to     safeguard        the

courts from fraud does not amount to the “review” proscribed by

§ 1447(d), we reverse.



                                            I.

                                            A.

     This action arises from asbestos litigation brought by two

individuals in Maryland state court.                      Plaintiffs Joyce Barlow

and Clara Mosko separately sued Colgate–Palmolive Company--among

numerous    other        companies 1--and        asserted        that     each       of    the

defendants’ products had at some point exposed them to asbestos.

     1
       Barlow named 23 defendants. (J.A. 47-53.)                         Mosko named 36
defendants. (Id. at 56-65.)


                                            4
As    to   Colgate,      Plaintiffs’         theory     was    that     the    company’s

“Cashmere       Bouquet”       line   of   powder     makeup    products       contained

harmful     levels    of       asbestos     and   had    thereby      contributed      to

Plaintiffs’ health problems.

       Despite Plaintiffs’ joinder of in-state defendants, Colgate

removed the two cases to federal court on the basis of diversity

of    citizenship--asserting            fraudulent      joinder    of    the    in-state

defendants, and alleging that Plaintiffs’ deposition testimony

and    interrogatory       responses        demonstrated       that     they    did   not

intend     to   pursue     a    claim      against    any     defendant       other   than

Colgate, a diverse defendant. 2




       2
       A federal court has subject-matter jurisdiction to hear a
case if (1) “the matter in controversy exceeds the sum or value
of $75,000” and (2) there is complete diversity among defendants
and plaintiffs. 28 U.S.C. § 1332(a); Turner v. JP Morgan Chase
Bank, N.A., 543 F. App’x 300, 301 (4th Cir. 2013) (per curiam).
If a case meets these conditions, but a plaintiff files suit in
state court, defendants may remove a case to federal court. See
28 U.S.C. § 1446. “[I]t is difficult for a defendant to remove
a case if a nondiverse defendant has been party to the suit.”
Turner, 543 F. App’x at 301 (citation and brackets omitted). A
defendant may accomplish this, however, through the doctrine of
fraudulent joinder, which allows a district court to disregard
the citizenship of certain nondiverse defendants and assume
jurisdiction.   Id. (citation omitted).   “[T]o establish that a
nondiverse defendant has been fraudulently joined, the removing
party must establish either: [A] that there is no possibility
that the plaintiff would be able to establish a cause of action
against the in-state defendant in state court; or [B] that there
has been outright fraud in the plaintiff’s pleading of
jurisdictional facts.” Id. (citation omitted).


                                             5
     Plaintiffs’ counsel 3 then moved to remand the cases to state

court, arguing that Plaintiffs had viable claims against the

non-diverse      defendants.    In    a       motion    for   remand     in   Barlow’s

case, counsel represented the following:

              [T]here is some circumstantial evidence to
              suggest Ms. Barlow could possibly have been
              exposed   to   asbestos-containing   products
              while working at RMR Corporation. . . . The
              evidence is certainly circumstantial, but it
              cannot be said that there is no possibility
              that a claim could be successfully proven
              against any of the non-diverse defendants.

(J.A.    106.)       In   support,    Barlow’s         counsel    cited       Barlow’s

statement to a physician on or about June 21, 2011, that she

“may have been” exposed to asbestos while working the assembly

lines    of    RMR   Corporation. 4       (Id.     at    96,     145.)        Although

Plaintiffs’ counsel admitted that the evidence of liability was

     3
       We use “Plaintiffs’ counsel” to refer to both Barlow’s
attorney and Mosko’s attorney because their attorneys are the
same person, or at least hail from the same law firm.         See
Restatement (Third) of the Law – The Law Governing Lawyers § 14
cmt. h (2000) (“When a client retains a lawyer [who is part of a
law firm], the lawyer’s firm assumes the authority and
responsibility   of   representing   that   client,   unless  the
circumstances indicate otherwise.”).     Different attorneys from
the Law Offices of Peter G. Angelos represented Barlow and Mosko
at different stages of litigation: Jennifer Lilly signed
Barlow’s and Mosko’s respective motions for remand in federal
court, but Thomas Kelly signed Barlow and Mosko’s joint motion
for consolidation of their cases into a trial group.
     4
        Barlow   later  contradicted   this  statement  at   her
deposition, where she admitted that she did not believe that she
was “exposed to asbestos at any time as a result of [her]
employment at RMR Corporation” and that the information she
relayed to her physician was based on gossip, rumor, and
hearsay. (J.A. 131, 133, 137.)


                                          6
hardly “unequivocal,” counsel maintained that Barlow’s testimony

showed    “that      there    is     a    possibility      that   Ms. Barlow     could

successfully pursue a claim against the non-diverse defendants.”

(Id. at 114.)

        Based   on   the     above       representations,     the     district   court

(Judge Nickerson) remanded Barlow’s case to state court.                            The

district    court     relied       solely     on   the    claim   that   Barlow     was

exposed to asbestos at RMR Corporation: “Barlow argues that her

joinder of the in-state defendants was not fraudulent because

there remains a possibility that she was exposed to asbestos

while working at RMR Corporation . . . .                   As a result, the Court

finds    that   joinder      of    the     in-state      defendants    here   was   not

fraudulent . . . .”          (Id. at 367-68.)

        Similarly, in Mosko’s case, Plaintiffs’ counsel represented

that she may have a viable claim against at least one of the

non-diverse defendants:

            [I]t was certainly plausible at the time
            [that Mosko] filed her Complaint that local
            defendants should be implicated. . . . In
            fact, Plaintiff’s counsel do have some
            circumstantial evidence that Ms. Mosko may
            have   been  exposed   to asbestos   at  the
            Department of Agriculture in the form of
            invoices [from an in-state defendant, Walter
            E. Campbell Co., Inc.].




                                             7
(Id. at 247.)      Based on the above representations, 5 the district

court (Judge Quarles) found a possibility that Ms. Mosko could

successfully pursue a claim against the non-diverse defendants

and remanded Mosko’s case to state court.               (Id. at 351-61.)     In

doing so, the district court relied solely on the claim that

Mosko was exposed to asbestos at the Department of Agriculture

(DOA) building: “Mosko has shown more than a ‘glimmer of hope’

of recovering against . . . an in-state defendant[] for exposure

during the renovations in the DOA building.                Therefore, removal

was improper.”     (Id. at 358-59.)



                                        B.

     Shortly after returning to state court, Plaintiffs filed a

joint motion to consolidate their cases with two other asbestos-

related cases. 6         Colgate opposed the motion, arguing that it

could    not   receive    a   fair   trial   in   a   consolidated   proceeding

because the alleged sources of asbestos (other than Cashmere

Bouquet) were too different among the cases.                In a reply brief,



     5
       Plaintiffs’ counsel made these statements despite Mosko
admitting at a deposition on May 29, 2012, that she did not
believe that she was exposed to asbestos while working at the
Department of Agriculture.
6
  The district court handed down remand orders in Mosko’s and
Barlow’s cases on September 21, 2012, and November 1, 2012,
respectively.   The joint motion was filed eight days after the
remand in Barlow’s case.


                                        8
Plaintiffs made the following statements, which contradict their

representations to the federal district court judges:

            [Plaintiffs] allege exposure to asbestos-
            containing Cashmere Bouquet powder products
            only and do not allege exposure to any other
            asbestos, asbestos-containing products or
            asbestos-containing dust in any other form.
            . . . Colgate attempts to highlight alleged
            differences in Plaintiffs’ worksites and
            occupations    as   well   as    their   alleged
            exposures   to    [other]   asbestos-containing
            products.      However,   neither    Plaintiffs’
            worksites nor their occupations are relevant
            to this consolidation review because each of
            the Plaintiffs were exposed, in their homes,
            to   asbestos-containing     Cashmere    Bouquet
            only. . . . The occupations or worksites of
            the   Plaintiffs    should    not   affect   the
            consolidation of these cases for trial
            because not one of the Plaintiffs testified
            that they were exposed to asbestos as a
            result of their employment. . . . In short,
            there is absolutely no evidence to indicate
            or even suggest that the Plaintiffs were
            exposed to asbestos in any form other than
            Cashmere Bouquet.

(J.A. 474–76 (paragraph breaks omitted) (emphases added).)

     At a hearing on Plaintiffs’ consolidation motion, the state

court   judge   told    Plaintiffs’   counsel,   “I   can’t   believe    you

actually told Judge Nickerson and Judge Quarles one thing and

tell me another.”        (Id. at 494.)      The judge then posed the

following    question    to   Plaintiffs’   counsel:    “It   is   a    one-

defendant case, right?”       Counsel answered, “Yes.”    (Id.)




                                      9
                                                C.

      After     the     post-remand           hearing,       Colgate          moved    in    the

district       court        for        relief        from        Plaintiffs’          purported

misrepresentations.            Specifically, Colgate sought relief under

Rule 11 of the Federal Rules of Civil Procedure and asked that

the district court sanction Plaintiffs’ attorneys by imposing

monetary      penalties,       referring         them       to    the    state        bar,   and

awarding      any    other        relief      that    the        district      court     deemed

appropriate.          The    nearly        identical        motions      in    Barlow’s      and

Mosko’s separate cases were consolidated before Judge Nickerson.

A   hearing    was     held       on   these     motions,         at    which     Plaintiffs’

counsel claimed that the statements made in federal court were

“legal     conclusion[s]”          and       “legal    argument[s],”           not     “factual

contention[s]” subject to Rule 11 sanctions.                            (Id. at 1070–71.)

Post-hearing, Colgate moved for relief under Rule 60(b)(3) as a

supplement     to     its     Rule      11    motions.           In    its    Rule     60(b)(3)

motions, Colgate sought vacatur of the remand orders.

      On    June      26,    2013,       Judge       Nickerson         “denied”       Colgate’s

motions.       (Id. at 1107, 1109.)                   Although the district court

characterized the allegations in the motions as “substantial”

and acknowledged that the different statements by Plaintiffs’

counsel “appear to be in sharp conflict,” the court concluded

that 28 U.S.C. § 1447(d) deprived it of jurisdiction to vacate

or strike its remand orders.                  (Id. at 1106, 1108.)              The district

                                                10
court further stated that “[w]ere the Court to consider other

possible sanctions, it would decline to impose them.”                 (Id.)    It

was   “not     convinced    that     counsel’s     conduct   is   sanctionable”

because     the   alleged       misrepresentations    were   “attributable     to

different attorneys in markedly different litigation contexts.”

(Id.)      This appeal followed. 7



                                          II.

      We    review    questions      of   law,   including   a    lower    court’s

determination        of   its     subject-matter     jurisdiction,    de    novo.

Trans Energy, Inc. v. EQT Prod. Co., 743 F.3d 895, 900 (4th Cir.

2014); Lontz v. Tharp, 413 F.3d 435, 439 (4th Cir. 2005).                      We

review a district court’s decision on Rule 11 and Rule 60(b)(3)

motions for an abuse of discretion.                Hunter v. Earthgrains Co.

Bakery, 281 F.3d 144, 150 (4th Cir. 2002) (stating the standard

of review for Rule 11 motions); Green v. Foley, 856 F.2d 660,

665 (4th Cir. 1988) (stating the standard of review for Rule

60(b) motions).




      7
       The original panel consisted of Judge Davis, Judge Floyd,
and Judge Cogburn, United States District Judge for the Western
District of North Carolina, sitting by designation. A majority
affirmed the district court’s determination “insofar as it ruled
that it lacked jurisdiction.” Barlow v. Colgate Palmolive Co.,
750 F.3d 437, 440 (4th Cir. 2014). On June 5, 2014, the Court
granted Colgate’s petition for rehearing en banc.


                                          11
                                        III.

      This    appeal    concerns      whether       a    district     court    retains

jurisdiction to issue sanctions under Rule 11 and to vacate a

remand order under Rule 60(b)(3) following remand of the case to

the state court.            The propriety of such relief requires us to

assess      the   interplay        between       these   rules      and   28   U.S.C.

§ 1447(d).



                                            A.

      The    federal    removal      statute      prohibits      review   of   orders

remanding removed cases:

             An order remanding a case to the State court
             from which it was removed is not reviewable
             on appeal or otherwise, except that an order
             remanding a case to the State court from
             which it was removed pursuant to section
             1442 [cases against federal officers] or
             1443 [certain civil rights cases] of this
             title shall be reviewable by appeal or
             otherwise.

28 U.S.C. § 1447(d).          This statute generally precludes review of

a   remand    order    if    the   remand    is    for   lack    of   subject-matter

jurisdiction or for defects in the removal procedure.                          Powerex

Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229, 234

(2007).      For example, a district court may not review--pursuant

to a motion for reconsideration--an order remanding a case for

lack of diversity jurisdiction, even in the face of evidence of

fraudulent joinder.          In re Lowe, 102 F.3d 731, 733-34 (4th Cir.

                                            12
1996).    Review        is   prohibited,        moreover,    “even    if    the    remand

order is ‘manifestly, inarguably erroneous.’”                      In re Blackwater

Sec. Consulting, LLC, 460 F.3d 576, 582 (4th Cir. 2006) (quoting

Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir.

1996) (Phillips, J., concurring)).                 This strict treatment serves

the purposes of comity and judicial economy, as an action “must

not   ricochet    back       and    forth      depending    upon   the     most    recent

determination of a federal court.”                 Three J Farms, Inc. v. Alton

Box Bd. Co., 609 F.2d 112, 115 (4th Cir. 1979) (quoting In re La

Providencia Dev. Corp., 406 F.2d 251, 252 (1st Cir. 1969)).

      This Circuit has recognized three exceptions to § 1447(d)’s

limit on reviewing remand orders: (1) when the remand was not

based on a determination either that the court lacked subject-

matter jurisdiction or that there was a defect in the removal

procedure; (2) when the review is of a “collateral decision that

is [logically and factually] severable from the remand order”

and that had a “conclusive effect upon the parties’ substantive

rights”; and (3) when the district court exceeds the scope of

its authority in issuing a remand order.                     In re Blackwater Sec.

Consulting,      LLC,    460       F.3d   at    582-83,     586.     None     of    these

exceptions apply here.             First, the remand orders were explicitly

based on a determination that the district court lacked subject-

matter   jurisdiction.               Second,      the     remand     orders       had   no

“conclusive effect” on the parties’ substantive rights.                                 And

                                            13
third, no party contends that the district court exceeded its

authority.

     Nevertheless,     as     discussed     below,     the    types      of   relief

provided by Rule 11 and Rule 60(b)(3) do not involve “review” as

proscribed by § 1447(d).           Accordingly, Colgate’s motions never

implicated § 1447(d) in the first instance.



                                       B.

     Rule     11(b)    specifically        authorizes        courts      to   impose

sanctions    for   misrepresentations.            It   requires       attorneys    to

submit   a   filing   in    good   faith    and   without     knowledge       of   the

falsity of its contents:

             By presenting to the court a pleading,
             written motion, or other paper . . . an
             attorney . . . certifies that to the best of
             the person’s knowledge, information, and
             belief . . . (1) it is not being presented
             for any improper purpose . . . [and] (3) the
             factual contentions have evidentiary support
             or, if specifically so identified, will
             likely have evidentiary support after a
             reasonable     opportunity    for    further
             investigation or discovery . . . .

Fed. R. Civ. P. 11(b).         If a court “determines that Rule 11(b)

has been violated, the court may impose an appropriate sanction

on any attorney, law firm, or party that violated the rule or is

responsible    for    the    violation,”     Fed.      R.    Civ.   P.    11(c)(1),

although the sanction “must be limited to what suffices to deter



                                       14
repetition      of    the    conduct     or     comparable      conduct    by   others

similarly situated,” Fed. R. Civ. P. 11(c)(4).

       The Rule 11 jurisdictional issue before us involves two

similar but distinct questions: (1) whether a district court

retains    jurisdiction       to    impose      sanctions      after   remanding      an

action    to   state    court      and   (2)    whether   an    appeals    court     can

review a district court’s determination regarding the imposition

of sanctions in such a circumstance.                     As set forth below, we

answer both questions in the affirmative.

       The Supreme Court itself has spoken on these issues.                           In

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 389-90 (1990),

the district court granted the defendants’ Rule 11 motion more

than three years after the plaintiff had voluntarily dismissed

the case.      On appeal, the Supreme Court stated that “a voluntary

dismissal does not expunge the Rule 11 violation,” and “a court

must have the authority to consider whether there has been a

violation      of    [Rule   11]    regardless      of    the    dismissal      of   the

underlying action.”          Id. at 395.         The Court noted that “[i]t is

well established that a federal court may consider collateral

issues after an action is no longer pending” and that “[t]he

filing of complaints, papers, or other motions without taking

the necessary care in their preparation is a separate abuse of

the judicial system, subject to separate sanction.”                       Id. at 395,

398.

                                           15
       Two years later the Court reached a similar conclusion in

Willy v. Coastal Corp.:

               [Although a] final determination of lack of
               subject-matter jurisdiction of a case in a
               federal   court    . . .   precludes  further
               adjudication    of   it[,]    . . .  such   a
               determination does not automatically wipe
               out all proceedings had in the district
               court at a time when the district court
               operated under the misapprehension that it
               had jurisdiction.

503 U.S. 131, 137 (1992).                    Citing Cooter & Gell, the Court

reiterated that Rule 11 sanctions are “collateral to the merits”

of   an   action    and     that      “[t]he       interest       in    having       rules   of

procedure       obeyed    . . .    does      not    disappear          upon    a    subsequent

determination       that        the     court       was        without        subject-matter

jurisdiction.”           Id. at 137, 139.            Several appeals courts have

relied    on    Willy,     along      with   Cooter       &    Gell,     in    holding    that

district courts maintain jurisdiction after remand to order Rule

11 sanctions.       E.g., Bryant v. Britt, 420 F.3d 161, 164 (2d Cir.

2005) (per curiam) (citing Willy, 503 U.S. at 137-38); Lazorko

v. Pa. Hosp., 237 F.3d 242, 247 (3d Cir. 2000) (citing Willy,

503 U.S. at 139).

       This Court’s own caselaw is in accord.                           In Anton Leasing,

Inc.   v.      Engram,    the    district       court         granted    the       plaintiff’s

motion to remand the case to state court for failure to remove

the case to the proper venue.                      846 F.2d 69, at *1 (4th Cir.

1988) (per curiam) (unpublished table decision).                               Prior to the

                                             16
remand,     the    plaintiff       requested      costs    and       fees.        Id.     The

defendant “failed to respond to [the plaintiff’s] motion, and

the district court granted [the] motion to remand and dismissed

the case from the docket.             The court awarded no costs or fees.”

Id.

       Then--after        remand--the      defendant      filed       a   motion     in    the

district court to transfer venue to cure his prior error.                                 Id.

The plaintiff opposed this motion and again requested attorney’s

fees, which the district court awarded.                          Id.        The defendant

appealed.         On     appeal,    this    Court    held        that     although        “the

district court was without jurisdiction to rule on the transfer

motion, . . . the court had jurisdiction to review the [post-

remand] request for just costs and that that part of the order

is    appealable.”          Id.    (citing       News-Texan,         Inc.    v.    City    of

Garland, 814 F.2d 216, 220 (5th Cir. 1987), and Vatican Shrimp

Co. v. Solis, 820 F.2d 674, 679-80 (5th Cir. 1987) (both Rule 11

cases)).

       As   these       cases   demonstrate--and          as   we     reiterate         here--

district courts have jurisdiction to decide Rule 11 sanctions

motions     on    the    merits,    even    when    they       are     filed      after    the




                                            17
underlying action is remanded to state court.              It is unclear

whether the district court in this case recognized as much. 8

     After declining to vacate the remand orders, the district

court continued that it would deny relief “[w]ere the Court to

consider other possible sanctions.”           (J.A. 1106, 1108.)     This

statement implicitly acknowledges that the court was not making

a determination on the merits in regard to sanctions other than

vacatur, but the orders fail to explicitly state why.              On one

hand, it appears that the court thought that Colgate sought only

vacatur.    Thus, the district court would naturally treat its

consideration of other sanctions as only hypothetical--knowing

that it would have jurisdiction to consider such sanctions if

they were sought.      On the other hand, one can construe the

discussion as controlled by the district court’s determination

in the directly preceding paragraph that it lacked jurisdiction

to afford relief under § 1447(d).         In other words, the court was

opaquely   saying   that   if   it   “were”   to   have   jurisdiction   to

consider Rule 11 sanctions, it would decline to issue any.

     8
       Although the district court’s reasoning in denying the
motions is somewhat opaque, one aspect of the orders is clear:
the district court declined vacating the remand orders as a Rule
11 sanction.    (J.A. 1106-09.)   Indeed, there is no basis in
using Rule 11 as a means to vacate a remand order and to return
a case to federal court. Cf. Fed. R. Civ. P. 11(c)(4) (listing
possible sanctions, none of which include striking an order); 5A
Charles Alan Wright et al., Federal Practice and Procedure
§ 1336.3 (3d ed. 2004) (discussing the variety of permitted
nonmonetary sanctions under Rule 11).


                                     18
       Ultimately, however, why the district court denied other

Rule 11 sanctions is not dispositive to this appeal’s outcome.

Because we reverse the orders for erroneously holding that the

court   lacked    jurisdiction          to    consider        Rule   60(b)(3)      motions,

infra Part III.C, we simply remand the cases for reconsideration

of Colgate’s motions in full and in light of this opinion, see

infra Part IV.



                                             C.

       We further find that § 1447(d) does not limit a court’s

authority to provide relief--in this case, through vacatur--from

a   fraudulently        obtained        remand      order       under     Rule 60(b)(3).

Critically,      § 1447(d)       prohibits        “reviewing”        an   order,      but      it

does    not     prohibit        “vacating”         an     order      as    permitted           by

Rule 60(b)(3).           This     distinction            is   not    merely       semantic.

Rather, as several fundamental tenets of statutory construction

demonstrate, it is a distinction with an important difference.

Felix Frankfurter, Some Reflections on the Reading of Statutes,

47 Colum. L. Rev. 527, 546 (1947) (“Exactness in the use of

words     is   the      basis     of     all      serious       thinking.”        (citation

omitted)); Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54

(1992) (“[C]ourts         must    presume         that    a   legislature       says      in   a

statute    what   it     means    and    means      in    a     statute    what      it   says

there.”);      Perrin    v.     United       States,      444    U.S.     37,   42     (1979)

                                             19
(“[U]nless      otherwise         defined,       words     will    be   interpreted          as

taking their ordinary, contemporary, common meaning.”).

       Rule 60(b)(3) provides that a court “may relieve a party”

from a “final judgment, order, or proceeding” for “fraud . . . ,

misrepresentation, or misconduct by an opposing party.”                             Rather

than assess the merits of a judgment or order, it focuses on the

unfair means by which a judgment or order is procured.                              Schultz

v. Butcher, 24 F.3d 626, 631 (4th Cir. 1994); see also Gonzalez

v.    Crosby,       545    U.S.   524,     532    (2005)    (distinguishing         a    Rule

60(b)(3) motion as not attacking “the substance of the federal

court’s resolution of a claim on the merits, but some defect in

the integrity of the federal habeas proceedings”).

       We     conclude       that       Colgate     seeks     vacatur       based       on    a

collateral consideration--Colgate’s allegation that the remand

orders were procured through attorney misconduct--rather than on

the    remands’       merits.       In     doing    so,     we     adopt    the   Eleventh

Circuit’s well-reasoned analysis in Aquamar S.A. v. Del Monte

Fresh    Produce          N.A.,   Inc.,    179    F.3d     1279     (11th    Cir.   1999).

There, the Eleventh Circuit correctly recognized that vacatur of

a    remand    order       does   not     necessarily       constitute      a   proscribed

review of a remand decision.                     Id. at 1288.           This is because

vacatur       may     be     available       even     when        review    (defined          as

“reconsideration;             second       view     or      examination;          revision;

consideration for purposes of correction”) is precluded.                                     Id.

                                             20
(citing U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S.

18,   22–23      (1994),   and   Black’s     Law    Dictionary    1320   (6th   ed.

1990)).        Thus, if a court vacates an order for “reasons that do

not involve a reconsideration or examination of its merits,”

then there is no review of the order, and a court does not run

afoul     of    § 1447(d)’s    prohibition     on    review.      Id.;   see    also

Tramonte v. Chrysler Corp., 136 F.3d 1025, 1028 (5th Cir. 1998)

(“[V]acatur of the remand order would . . . not constitute a

review of the merits of that order, prohibited by 28 U.S.C.

§ 1447(d).”).

      Admittedly,      three     circuits--in       unpublished   opinions--have

ruled that § 1447(d) deprives courts of jurisdiction to afford

relief under Rule 60(b)(3). 9         Wachovia Mortg. FSB v. Marquez, 520

F. App’x 783, 785 (11th Cir. 2013) (per curiam); Ysais v. Ysais,

372 F. App’x 843, 844 (10th Cir. 2010); Lindo v. Westlake Dev.

Co., 100 F.3d 963, at *1 (9th Cir. 1996).                  None of these non-


      9
       Besides these decisions from our sister circuits, two
district courts have ruled on the issue, finding that they
lacked jurisdiction to grant relief under Rule 60(b)(3)--
determinations apparently influenced by the lack of binding
precedent on this specific issue, in the face of a bounty of
cases applying § 1447(d) in other contexts.   See Omi’s Custard
Co. v. Relish This, LLC, No. 04-cv-861-DRH, 2006 WL 2460573, at
*2-3 (S.D. Ill. Aug. 24, 2006) (noting the lack of precedent on
the issue and concluding that relief is barred); Consol. Doors,
Inc. v. Mid-America Door Co., 120 F. Supp. 2d 759, 764-66 (E.D.
Wis. 2000) (declining “to adopt a novel interpretation” of Rule
60(b) in ruling on the party’s “motions for reconsideration”
under subsections (2) and (3)).


                                        21
binding, unpublished opinions are persuasive, however.                     Simply

put, those opinions--with minimal analysis and in the context of

appeals brought by pro se litigants--failed to consider what

relief     under    Rule   60(b)(3)   can    entail:    vacatur    based     on   a

contaminated process, not review of a motion’s merits. 10                     See

Gonzalez, 545 U.S. at 532; Schultz, 24 F.3d at 631.

      Our prior decision in In re Lowe, 102 F.3d at 735, is

similarly inapposite.         In Lowe, the district court remanded the

case due to lack of complete diversity between the parties, and

the defendants moved for “reconsideration”--not vacatur--of the

remand order.        Id. at 732–33.         The district court granted the

motion, and the plaintiff petitioned this Court for a writ of

mandamus.     Id. at 733.      This Court framed the “principal issue”

in   the   appeal    as    “whether   the    district   court     exceeded    its

jurisdiction when it reconsidered its remand order.”                       Id. at


      10
        Although a handful of other appellate decisions have
found that motions filed under different subsections of Rule
60(b) ask for impermissible review, those decisions are
irrelevant here because their pertinent subsections do not focus
on the means by which a remand order is obtained. See Bender v.
Mazda Motor Corp., 657 F.3d 1200, 1202, 1204 (11th Cir. 2011)
(affirming the lower court’s denial of a Rule 60(b)(6) motion);
Hood v. Allstate Ins. Co., 67 F. App’x 248, at *1-3 (5th Cir.
2003) (per curiam) (dismissing an appeal of a denied motion to
vacate under Rule 60(b)(4)); Lucisano v. Lucisano, 216 F.3d
1072, at *1 (2d Cir. 2000) (dismissing an appeal of an order
denying relief under an unspecified subsection of Rule 60(b));
Polyak v. Hulen, 898 F.2d 154, at *1 (6th Cir. 1990) (finding
that jurisdiction could not be “reinvest[ed]” in the district
court under Rule 60(b)(2)).


                                       22
733-34    (emphasis         added).         This      Court    then    determined      that,

“[i]ndisputably,                ‘otherwise’            in       § 1447(d)        includes

reconsideration by the district court.”                          Id. at 734 (emphasis

added).

     Lowe       is    consistent         with   several       factually   similar      cases

(that is, cases in which a party asked for reconsideration of a

remand order), all of which were correctly decided in view of

§ 1447(d)’s          bar   on   “review.”            See,   e.g.,     Agostini   v.    Piper

Aircraft Corp., 729 F.3d 350, 355 (3d Cir. 2013) (“[W]e hold

that we do not have jurisdiction to review an order denying a

motion     to        reconsider      a     remand      order.”);       Harris    v.    Blue

Cross/Blue Shield of Ala., Inc., 951 F.2d 325, 326, 330 (11th

Cir. 1992) (addressing the issue of “whether the district court

had jurisdiction to ‘reconsider’ its order remanding the case to

state court” and concluding that it did not).

     The    actions         before       the    Court       today,    however,   are    not

controlled by Lowe.              Unlike in Lowe, Colgate requests vacatur,

not reconsideration.              And unlike reconsideration, vacatur does

not require reassessing the facts that were presented to the

district court at the time the cases were removed.                           See Aquamar

S.A., 179 F.3d at 1288; Tramonte, 136 F.3d at 1028.                                   Again,

Colgate only argues that Plaintiffs’ counsel misrepresented the

actual facts of the case.                  Colgate therefore attacks the manner



                                                23
by which Plaintiffs secured the remand orders, not the merits or

correctness of the orders themselves.

      In   sum,       nothing   in    the   plain       language     of    §    1447(d)    or

courts’    interpretation         thereof        bars    vacatur     of     the      district

court’s remand orders if the court determines that such relief

is   warranted.            Although   reconsideration          is    a     subspecies      of

review, see In re Lowe, 102 F.3d at 733–34, vacatur, without

revisiting       a    prior     order’s     merits,       is   no    such       cousin     or

relative.



                                            IV.

      Because        the   district    court      had    jurisdiction          to    consider

Colgate’s motions, it should have resolved the motions on their

merits.      A       cursory    reading     of    the    court’s     orders,         perhaps,

suggests that it did just that.

      In    “den[ying]”         Colgate’s        motions, 11   the        district       court

apparently       determined--in        a     hypothetical          context          in   which

jurisdiction was assumed--that “it would decline [to vacate the

remand orders and] to impose [other possible sanctions].”                                (J.A.

1106-09.)     This purported determination was based on the court’s

recognition that the statements at issue “are attributable to

      11
        The court “denied” all of Colgate’s motions, including
the Rule 60(b)(3) motions that it technically should have
“dismissed” based on the court’s determination that it lacked
jurisdiction. (J.A. 1107, 1109.)


                                            24
different attorneys in markedly different litigation contexts.”

(Id. at 1106, 1108.)          Thus, the court was “not convinced that

counsel’s conduct is sanctionable.”                (Id.)        Given the district

court’s misconception that it lacked jurisdiction to give full

consideration to the merits of the Rule 60(b)(3) motions (and

possibly the Rule 11 motions, supra Part III.B), we give no

weight to the court’s supposed determination.                     Indeed, pursuant

to our discussion supra Part III.B, it was mere dicta.

     On remand, the district court is directed to make specific

findings--supported by cogent reasoning--on whether Plaintiffs

engaged in misconduct while in federal court and whether Rule 11

relief is warranted.             Given the district court’s familiarity

with the issues and litigants, it is better situated than us “to

marshal the pertinent facts and apply the fact-dependent legal

standard mandated by Rule 11.”               Cooter & Gell, 496 U.S. at 402.

In   making   these       determinations,        the    district       court     should

provide more analysis than that included in the orders’ dicta,

which would be too perfunctory to merit meaningful review.                         Cf.

United States v. Engle, 592 F.3d 495, 503-04 (4th Cir. 2010)

(remanding a case for new sentencing because the district court

failed to give an adequate explanation for its determination).

     As   with   the      Rule    11    motions,       Colgate’s       Rule    60(b)(3)

motions require       a   showing      of   misconduct     by    the    other   party,



                                            25
among other things. 12   See Square Constr. Co. v. Wash. Metro.

Area Transit Auth., 657 F.2d 68, 71 (4th Cir. 1981).     For the

same reasons stated supra, the lower court, familiar with the

facts and parties, is better suited to make this determination.


     12
        One additional requirement is a showing that the movant
had a “meritorious claim or defense.”      Square Constr. Co. v.
Wash. Metro. Area Transit Auth., 657 F.2d 68, 71 (4th Cir.
1981). We acknowledge that courts most often use Rule 60(b)(3)
to relieve a party of a determination on a case’s substantive
grounds.   Indeed, other circuits’ standards for relief under
Rule 60(b)(3) reflect such a focus by entailing an inquiry into
the probable effect of misconduct on presenting one’s “case” or
proceeding at trial.   See, e.g., State St. Bank & Trust Co. v.
Inversiones Errazuriz Limitada, 374 F.3d 158, 176 (2d Cir. 2004)
(“To prevail on a Rule 60(b)(3) motion, a movant ‘must show that
the conduct complained of prevented the moving party from fully
and fairly presenting his case.’” (citation omitted)); Venson v.
Altamirano, 749 F.3d 641, 651 (7th Cir. 2014) (“The party
seeking relief pursuant to Rule 60(b)(3) must show that he had a
meritorious claim that he could not fully and fairly present at
trial due to his opponent’s fraud, misrepresentation, or
misconduct.”); Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d
1281, 1290 (10th Cir. 2005) (“[T]he challenged behavior must
substantially have interfered with the aggrieved party’s ability
fully and fairly to prepare for and proceed at trial.” (citation
omitted)); Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478 F.3d
1303, 1314 (11th Cir. 2007) (“[T]he moving party must show that
the conduct prevented the losing party from fully and fairly
presenting his case or defense.” (brackets and citation
omitted)); In re Hope 7 Monroe St. Ltd. P’ship, 743 F.3d 867,
875 (D.C. Cir. 2014) (“[T]he movant must show the misconduct was
prejudicial, foreclosing the ‘full and fair preparation or
presentation of its case.’” (citation omitted)).         Nowhere,
however, do the Federal Rules of Civil Procedure or our
precedent limit Rule 60(b)(3)’s applicability to judgments on a
case’s merits. Although we decline to explore the full breadth
of Rule 60(b)(3), we simply note that it applies to the present
situation, in which a party alleges that misconduct prevented it
from fully and fairly presenting its “claim” of entitlement to a
federal forum.   Cf. Black’s Law Dictionary 301 (10th ed. 2014)
(defining a “claim” as “[t]he assertion of an existing right”).


                               26
Therefore, we remand the cases to the district court to decide

Colgate’s   Rule   60(b)(3)   motions   and   whether   vacatur   of   the

remand orders is warranted.



                                  V.

     The district court’s orders are reversed.           The cases are

remanded for the district court to rule on Colgate’s Rule 11 and

Rule 60(b)(3) motions on their merits.

                                                 REVERSED AND REMANDED




                                  27
WYNN, Circuit Judge, concurring in part and dissenting in part:

     I agree with the majority opinion that courts retain the

power to sanction attorneys after a remand to state court.                   But

in my view, so did the district court.

     The district court rightfully understood that it generally

could sanction the parties here—that is why it denied, instead

of dismissing for lack of jurisdiction, the sanctions motions.

It   is    clear   that   the     district    court   determined      that   the

complained-of      conduct      did   not     warrant        sanctions.      Its

determination is, however, so sparse that we cannot properly

review it.     I therefore agree that the matter should be remanded

to the district court, solely for further explanation of the

decision to deny sanctions.



                                      I.

     Although my fine colleagues in the majority opinion frame

the first issue before us as “whether a district court retains

jurisdiction to impose sanctions after remanding an action to

state court,” ante at 15, I do not believe that this is an issue

we must address—because the district court understood perfectly

well that it did.

     Indeed, nothing in the district court’s order on appeal

suggests    that   the    court    believed    that     it    generally   lacked

jurisdiction to impose sanctions for attorney misconduct after

                                      28
remand to state court.             Instead, the district court generally

noted that while it found counsel’s conduct “troubling,” the

court        was    “not      convinced        that       counsel’s     conduct     is

sanctionable.”         J.A.    1106.      That       is   why   the   district    court

simply denied the motions rather than dismissing them for lack

of jurisdiction. 1

       Additionally, the district court recognized that Defendant

sought only one sanction—“for the Court to strike the orders of

remand[,]” J.A. 1106, and apparently believed that such relief

would effectively constitute reconsideration, which 28 U.S.C. §

1447(d) prohibits.           Nevertheless, the district court deemed the

challenged conduct unworthy of sanctions.                   Therefore, so long as

that determination stands, any error in the district court’s

Section 1447(d) analysis was harmless.

       That being said, I agree with the majority opinion that

this       matter   should   be   remanded      to    the   district     court.     At

bottom, the parties dispute whether Plaintiffs, through counsel,

misrepresented to the federal district court that there existed

the “slight[est] possibility of a right to relief” or a “glimmer

of hope” on their claims against Maryland state defendants such

       1
       My fine colleagues in the majority opinion frame the
second issue before us as “whether an appeals court can review a
district court’s determination regarding the imposition of
sanctions in such a circumstance.” Ante at 15. But, frankly, I
fail to see why that needs to be addressed here, particularly
given that we are remanding.


                                          29
that remand to state court was appropriate.                            J.A. 368.          After

remand to state court, Plaintiffs, through counsel, represented

their     matters     as    one-defendant           cases.     I     find    the     district

court’s abbreviated analysis—that the statements were made by

different lawyers in different contexts, with no elaboration or

explanation—insufficient              to     allow    for     appellate       review.         I

therefore agree that we should remand to the district court for

further      explanation        of    its    decision.        See,    e.g.,       Miltier    v.

Beorn,       896    F.2d    848,      855    (4th     Cir.     1990)       (remanding       for

reconsideration a denial of sanctions “where the circumstances

and   the     record       do   not    clearly      reflect    the        reasons    for    the

district      court’s       disposition”),           overruled       in    part     on    other

grounds, Farmer v. Brennan, 511 U.S. 825 (1994).



                                              II.

        In   sum,    the    majority        opinion    makes    an    issue       where    none

exists.       I cannot agree with that undertaking—but do agree with

the majority that the district court’s sanctions determination

is too minimalist to review.                   Therefore, I would remand solely

for further explanation of that determination. 2


      2
        An   unaddressed   question in   this  appeal   is  how,
procedurally, these cases would make their way from state court
back to federal court and whether their doing so would offend
either the Anti-injunction Act, 28 U.S.C. § 2283, or the notions
of comity underpinning it.


                                              30
      Finally, we all should bear in mind that federal courts

have no monopoly on the ability to sanction attorney misconduct.

If    counsel   engages   in   misconduct   after   a   matter   has   been

remanded to state court, we should “have every confidence that

the [state court] has the authority and judicial resourcefulness

to deal with such a problem.”        Three J Farms, Inc. v. Alton Box

Bd. Co., 609 F.2d 112, 116 n.3 (4th Cir. 1979). 3




      3
          The entirety of Three J Farms footnote three is worth
noting:
           In his order . . ., the district judge referred
      to certain conduct of counsel for the plaintiffs which
      had occurred subsequent to his [prior remand] order .
      . . and indicated that the attorneys were using the
      state litigation to “harass the defendants.”     Having
      divested itself of jurisdiction by the original remand
      order,   the   district   court   had   no   continuing
      supervisory authority over the conduct of counsel, nor
      was any such conduct an appropriate basis for vacation
      of the remand.    We might add that if, in fact, the
      plaintiffs were using the state litigation in an
      improper manner, we have every confidence that the
      South Carolina Court has the authority and judicial
      resourcefulness to deal with such a problem.
Id.


                                    31
DAVIS, Senior Circuit Judge, dissenting:

       Every now and again, a case comes along that leaves the

careful reader scratching her head in puzzlement. This is one of

those cases. It could not be more clear that the author of the

panel dissent, who now authors the majority for the en banc

court, disagrees, and vigorously so, with the district court’s

decision      to    remand     this    case     to     state     court.   That    is     not

surprising; judges disagree all the time, and a good thing that.

What is surprising here is that the disagreement has led to this

bizarre rehearing in which a subset of the judges in regular

active      service    on     this    court     feel      constrained     to    order    the

district      judge,    in     effect,     to      redo    his    “mid-term      exam”   on

removal      jurisprudence           and   sanctions         law.     District     judges

(including me, when I was a member of that hardworking guild)

have    long       accepted    the     fact     that      appellate     judges    “‘grade

[their] papers’ on appeal.” See Robert Bruce King, Robert C.

Byrd and the Fourth Circuit Court of Appeals, 108 W. Va. L. Rev.

607, 609 (2006) (quoting the Honorable Joseph Robert Goodwin,

United States District Judge for the Southern District of West

Virginia). But the instant grading of papers takes that aphorism

to new heights (or, if you will, a new low).

       In   the     recurring,       decades-old,         hand-to-hand    combat    which

characterizes         removal/remand          litigation         in   federal    district

courts, this case does not stand out. Defendants (virtually)

                                              32
always want to be in federal court whenever they can because:

(1)   discovery     practice     is    more    orderly,      predictable,     and,

generally, more expensive for plaintiffs; (2) summary judgment

practice is more defendant-friendly; 1 and (3) juror selections

from the available jury pools, generally drawn from the wider

expanse of a federal district than the insular state judicial

region    from    which   they   are   drawn    in   state    court,    are   more

attractive to defendants. On the other hand, most plaintiffs in

cases removed on the basis of diversity of citizenship (and,

more importantly, plaintiffs’ counsel) prefer state court over

federal court for the very obverse of the above-listed factors.

(I am not revealing palace secrets here.)

      Thus, it was strange to hear, at oral argument before the

panel in this case, Colgate’s attorney repeatedly insist that

Appellees’ counsel had engaged in “jurisdictional manipulation”

(as if that were some kind of cardinal sin) in their efforts to

persuade    the     district     judge    to    remand    the    case    through

invocation of our longstanding “glimmer of hope” test. See Mayes

v. Rapoport, 198 F.3d 457, 466 (4th Cir. 1999). Colgate calls

      1
       Compare Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128
(4th Cir. 1987) (“Recent cases of the Supreme Court have made
increasingly clear, however, the affirmative obligation of the
trial judge to prevent ‘factually unsupported claims and
defenses’ from proceeding to trial.”), with Montgomery Cnty. Bd.
of Educ. v. Horace Mann Ins. Co., 860 A.2d 909, 915 (Md. 2004)
(“[I]n Maryland, a trial court has some discretion to deny
summary judgment even when it could grant that relief . . . .”).


                                         33
this customary aspect of removal/remand litigation “misconduct”

within     the   meaning    of    Fed.     R.    Civ.   P.      60(b)(3)     because

plaintiffs’ legal tactics took a different turn upon remand of

the case to state court, where the “glimmer of hope” test could

be ethically discarded given the changed legal landscape and in

light of a client’s best interest. Nothing new here.

       Back in federal court, Colgate filed a belated motion under

Rule     60(b)(3)    seeking     to    “vacate”    (but,     according       to   the

majority, through a feat of linguistic jiu-jitsu, not “review”)

the order of remand. The distinguished district judge, who will

shortly mark his twenty-fifth anniversary on the federal trial

bench (commenced after five years on the Maryland state trial

bench),    rejected    Colgate’s      attempts     to   slime    the   plaintiffs’

lawyers in these cases. He found there was no “misconduct” (to

say nothing of “misrepresentation”), and he further found that,

in any event, the sole relief sought by Colgate for counsel’s

“misconduct,”       restoration   of     federal   jurisdiction,       was    beyond

the court’s power to grant, citing, correctly in my view, 28

U.S.C. § 1447(d). See Ellenburg v. Spartan Motors Chassis, Inc.,

519 F.3d 192, 196 (4th Cir. 2008) (“The important policy carried

in [§ 1447(d)] disfavors prolonged interruptions to litigation

created by litigating which of two otherwise legitimate courts

should resolve the disputes between the parties.”).



                                         34
       All agree that Rule 11 is the reddest of red herrings in

this case. Ante at 17, 18 n.8 (“As these cases demonstrate--and

as    we     reiterate      here--district         courts      have   jurisdiction         to

decide Rule 11 sanctions motions on the merits, even when they

are    filed      after    the    underlying       action      is   remanded     to   state

court”; “there is no basis in using Rule 11 as a means to vacate

a remand order and to return a case to federal court.”). Unlike

the majority, I have no doubt that the district court knew full

well, after more than twenty years of service as a federal trial

judge,       it   had     post-remand    authority        to    impose       sanctions     on

ethically         challenged      attorneys       under     Rule    11.   The    contrary

insinuation is flatly insulting to the district court.

       Alas,      although     the   panel     dissent      would     have    found   as    a

matter of law that there was misconduct by Appellees’ counsel

and that federal jurisdiction must be restored as a remedy for

that       misconduct, 2    the    en   banc      court   prudently       and   correctly


       2
       See Barlow v. Colgate Palmolive Co., 750 F.3d 437, 462
(4th Cir. 2014) (Floyd, J., dissenting), reh’g en banc granted:
          Because the law is clear that remand does not
     deprive a court of jurisdiction to sanction a party
     pursuant to Rule 11, I would reverse the district
     court’s denial of Colgate's Rule 11 motion. And
     because it would have been an abuse of discretion to
     not sanction plaintiffs and their counsel, I would
     sanction plaintiffs and their counsel as set forth
     above in Part III.A. Furthermore, because vacatur of
     the remand orders does not require “review” of the
     merits of those orders, I would reverse the district
     court’s denial of Colgate’s Rule 60(b)(3) motion for
(Continued)
                                             35
refuses to go that far and instead, simply directs the district

court to write a longer opinion. Ante at 25–27.

     To be sure, however, this is not all that the majority

achieves. It is now the law of the Fourth Circuit that a Rule

60(b)(3) motion must be entertained by every district judge in

the circuit in any remanded case, and the district judge is

required to write a convincing opinion showing why “vacatur” of

the remand order is inappropriate. The majority rejects out-of-

hand, as lacking thoughtfulness and serious attention by the

rendering   courts,   the   unpublished   opinions   of   three   of   our

sister circuits that have explicitly refused to carve out Rule

60(b) exceptions to the clear mandate of 28 U.S.C. § 1447(d).

Ante at 21–22 (dismissing from consideration Wachovia Mortg. FSB

v. Marquez, 520 F. App’x 783, 785 (11th Cir. 2013) (per curiam);

Ysais v. Ysais, 372 F. App’x 843, 844 (10th Cir. 2010); Lindo v.

Westlake Dev. Co., 100 F.3d 963, at *1 (9th Cir. 1996) (table)).

This is a curious en banc critique, to say the least, for a

circuit that has permitted two of its judges to vacate a twenty-

four month sentence imposed by another distinguished district




     lack of jurisdiction. And because I think that Colgate
     has met the criteria to obtain relief under Rule
     60(b)(3) and that it would have been an abuse of
     discretion to not grant relief to Colgate, I would
     vacate the remand orders and remand the cases with
     instructions as set forth above in Part III.B.


                                  36
judge in ordering, instead, the imposition of a fifteen year

sentence,        on   the     basis    of     a    non-argued,          non-precedential,

unpublished opinion of its own. See United States v. Foster, 674

F.3d 391, 402–03 (4th Cir. 2012) (Davis, J., dissenting from the

denial      of   rehearing      en     banc)       (criticizing         panel    majority’s

reliance on United States v. Shelton, 196 F. App’x 220 (4th Cir.

2006), in reversing factual finding of the district court).

       Of   more      salience,      none   of     the   principal       pillars    of   the

majority’s       handiwork      in    eviscerating        § 1447(d)       will    bear   the

weight      assigned     to    them.    Gonzalez         v.    Crosby,     545    U.S.   524

(2005), was a federal habeas case in which Justice Scalia cited

dicta from a Second Circuit opinion to make the point that some

Rule     60(b)(3)       motions       would       not    be        considered    successive

petitions under 28 U.S.C. § 2254. See id. at 532 n.5 (citing

Rodriguez v. Mitchell, 252 F.3d 191, 199 (2d Cir. 2001)). This

is a thin reed on which to countermand an unambiguous federal

jurisdictional statute such as 28 U.S.C. § 1447(d).

       Nor is Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc.,

179 F.3d 1279 (11th Cir. 1999), of any genuine assistance to the

majority. In that case, relying on City of Waco v. United States

Fid. & Guar. Co., 293 U.S. 140 (1934), the court applied the

well-recognized         but   limited       exception         to    non-reviewability     of

remand orders called the “Waco doctrine”:



                                              37
      The Waco doctrine allows us to review district court
      orders that lead to, but are separate from, orders of
      remand and have a conclusive effect upon the ensuing
      state   court  action.  See,    e.g., Beauclerc  Lakes
      Condominium Ass’n v. City of Jacksonville, 115 F.3d
      934, 935 (11th Cir. 1997) (reviewing dismissal of
      federal claim that led to remand); Armstrong v.
      Alabama Power Co., 667 F.2d 1385, 1387 (11th Cir.
      1982) (relying on Waco to review district court’s
      dismissal of United States as party prior to remand) .
      . . . Similarly, vacating a remand to give effect to a
      judgment   on  another   matter    is an  “essentially
      ministerial task,” rather than a review. This circuit
      has held that a court of appeals may vacate an order
      of remand when necessary to give effect to its
      judgments. In Flohr v. Mackovjak, 84 F.3d 386, 392
      (11th Cir. 1996), this court reversed the district
      court’s denial of the defendant’s motion to substitute
      the United States as the party defendant in a
      negligence action, a denial that led to remand to
      state court.

Aquamar   S.A.,    179   F.3d     at    1286,    1289.   Thus,   Aquamar    S.A.

presented the extraordinary situation in which vacatur of the

remand order was the sine qua non to the effectiveness of the

Eleventh Circuit’s mandate. 3

      Here,   in   contrast,      the     majority’s     elevation     of   Rule

60(b)(3), so that it trumps the statutory prohibition on review

of   remand   orders,    serves    no    other    purpose   than   a   needless

decisional do-over by the district court. Simply put, vacatur

contravenes the mandate of § 1447(d). I have little doubt that

when it gets around to it (should any sister circuit blindly

      3
       Tramonte v. Chrysler Corp., 136 F.3d 1025 (5th Cir. 1998),
in which the appellate court reviewed a district judge’s pre-
remand denial of a motion for recusal, fits the same
description.


                                        38
follow ours, an unlikely eventuality), the Supreme Court will

reject such a blatant evasion of 28 U.S.C. § 1447(d).

      Indeed, this case is a first-round draft choice for summary

reversal should plaintiffs choose not to go back to the district

court to achieve the preordained results of the do-over unwisely

ordered   by    the    majority    and        instead   file   a   petition    for

certiorari.

      Despite    the   district    court’s       abbreviated     discourse    on   a

matter that most federal judges would regard as obvious, I do

not believe there is any reason to think the district court did

not   fully    comprehend    and   appreciate        sanctions     jurisprudence;

Judge   Nickerson      has   encountered        it   many   times.   See,     e.g.,

Watkins v. Trans Union LLC, No. WMN–10–838, 2010 WL 4919311 (D.

Md. Nov. 29, 2010) (dismissing case as a sanction); Awah v.

Board of Educ. of Baltimore Cnty., No. WMN–09–CV–1044, 2010 WL

9086039 (D. Md. June 10, 2010) (imposing monetary sanctions for

discovery violations), aff’d, 408 F. App’x 687 (4th Cir. 2011);

Greer v. Crown Title Corp., 216 F. Supp. 2d 519 (D. Md. 2002)

(in removed case, denying plaintiff’s motion for sanctions while

granting motion for remand to state court).

      Nor is there any reason to think that Judge Nickerson is

unfamiliar with this Circuit’s abundant removal jurisprudence;

to the contrary, he has lots of experience with it. See, e.g.,

Hammonds v. Baltimore Cnty. Bd. of Educ., No. WMN–11–3348, 2012

                                         39
WL 787478 (D. Md. Mar. 8, 2012) (granting motion for remand);

Schaftel    v.   Highpointe    Bus.    Trust,    No.    WMN–11–2879,     2012    WL

219511 (D. Md. Jan. 24, 2012) (denying motion to remand and

allowing removing defendant to amend the Notice of Removal to

correct deficient allegations therein); Henderson v. Jinny-Poot

Props., Inc., No. WMN–11–2482, 2011 WL 6000554 (D. Md. Nov. 28,

2011)   (granting    motion    to     remand);    Beltway    Capital,     LLC    v.

Mortg. Guar. Ins. Corp., No. WMN–11–376, 2011 WL 2066603 (D. Md.

May   25,   2011)   (denying   motion    for     remand);    Streeter    v.   SSOE

Sys., No. WMN–09–CV–01022, 2009 WL 3211019 (D. Md. Sept. 29,

2009)   (denying      motion    for     remand);       Hewett      v.   Tri-State

Radiology, P.C., No. WMN–09–2017, 2009 WL 3048675 (D. Md. Sept.

17, 2009) (granting motion for remand).

      The   remand    here     is   unwarranted        on   many    levels,     and

represents an “inefficient use of scarce judicial resources,”

indeed. Ellenburg v. Tom Johnson Camping Ctr., Inc., No. 8:06–

cv–1606, 2006 WL 1576701, at *2 (D.S.C. May 31, 2006) (Floyd,

J.), rev’d sub nom. Ellenburg v. Spartan Motors Chassis, Inc.,

519 F.3d 192 (4th Cir. 2008).

      Accordingly, I respectfully dissent.




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