In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337 (5th Cir. May 16, 2025) (en banc), the Fifth Circuit unanimously overrules a 45-year-old circuit precedent and holds that an order remanding a removed case based on the defendant’s alleged waiver by participation in a state-court case falls within the court’s appellate jurisdiction under 28 U.S.C. § 1447.

The case involves a law firm suing a departed lawyer, “alleging that he took firm files and clients to his new practice. Seventeen days later—well within the 30-day statutory removal window [of section 1447(c)]—Festeryga removed the case to federal court. The district court, however, remanded the case, concluding that Festeryga had waived his removal right by filing a motion to dismiss in state court” under Texas’s anti-SLAPP statute, the Texas Citizens Participation Act, i.e., waiver by participation. The district court therein relied upon In re Weaver, 610 F.2d 335 (5th Cir. 1980).

The en banc Fifth Circuit holds that it has appellate jurisdiction to review the remand order.

Section 1447(d) generally bars appellate review of a remand order in a removed case. It states in relevant part that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”

Yet in Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976), and subsequent decisions, the Supreme Court held “§ 1447(d)’s bar applies only when the remand order rests on the grounds authorized by § 1447(c).” Subsection (c) provides, in relevant part, that a “motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).”

Because “1447(d)’s bar applies only when the remand order rests on the grounds authorized by § 1447(c),” the Supreme Court has held that this subsection only bars appellate review “when the remand is based on one of two grounds: (1) a defect in the removal process, or (2) a lack of subject-matter jurisdiction.”

“The issue in this appeal is whether a remand based on the defendant’s alleged waiver of the right to remove—by participating in state-court proceedings—fits within one of § 1447(c)’s two categories. If it does, § 1447(d) bars our review. If not, our appellate jurisdiction remains intact.”

The Fifth Circuit had originally held in Weaver that “waiver may be characterized as a jurisdictional defect—placing it squarely within § 1447(c)’s bar on appellate review.” But the en banc court finds itself perplexed by the reasoning of its 1980 decision.

“[Waiver] is a doctrine of common-law origin, triggered ‘when a party voluntarily or intentionally surrenders a known right.’ But it is well established that a party’s litigation conduct can neither confer subject-matter jurisdiction on a court nor strip it away. A party may waive its right to remove a case, but that waiver bears no relation to the court’s jurisdiction to hear it.”

The en banc court notes that Weaver has been rejected by the Seventh, Tenth, and Eleventh Circuits, all of which “reached the sounder conclusion: waiver-based remand orders are not jurisdictional. Today we join that consensus and make clear that Weaver was wrongly decided.” (The en banc court observes that the Ninth Circuit followed Weaver in Schmitt v. Ins. Co. of N. Am., 845 F.2d 1546 (9th Cir. 1988), but in that case a “timeliness defect independently barred appellate review,” rendering its citation to Weaver as dicta.)

“In short, waiver is not jurisdictional. That conclusion follows from first principles and is confirmed by the overwhelming weight of circuit authority. Weaver is analytically unsound and widely discredited. We now join the prevailing view and make explicit what the law already implies: waiver-based remand orders do not fall within § 1447(d)’s bar to appellate review.”

Having thus overruled Weaver, the en banc court remands the decision to the original three-judge panel to decide, among other things, “whether the parties are diverse and whether the district court properly found waiver.”

Judge Ho, in a brief concurrence joined by Judge Higginson, endorses the limited compass of the en banc opinion: “I write separately to note that our decision today rightly reaffirms a basic principle of en banc rehearing—namely, that we need not decide every issue en banc, but may instead leave non-en banc worthy issues for the original panel to address.”