DIVISION OF ARCHIVES v. AUSTIN, 729 F.2d 1292 (11th Cir. 1984)

DIVISION OF ARCHIVES, HISTORY AND RECORDS MANAGEMENT, DEPARTMENT OF STATE, PLAINTIFF-APPELLEE, v. WILLIAM G. AUSTIN, DEFENDANT-APPELLANT.

No. 83-5729.United States Court of Appeals, Eleventh Circuit.
March 28, 1984.

David Paul Horan, Key West, Fla., for defendant-appellant.

Eric J. Taylor, Asst. Atty. Gen., Dept. of Legal Affairs, Carol Joy Barice, Dept. of State, Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, VANCE and KRAVITCH, Circuit Judges.

BY THE COURT:

[1] The plaintiff-appellee in this action, the Division of Archives of the State of Florida, originally filed this case in state court to determine ownership of a sunken vessel and to enjoin the defendant from excavating the vessel. The defendant-appellant filed a motion for removal to federal court and the appellee responded with a motion to remand for lack of federal jurisdiction. The district court granted the motion to remand from which order the appellant appeals. [2] The appellee’s main argument on appeal is that under 28 U.S.C. § 1447(d) this court is without jurisdiction to hear the appeal. Section 1447(d) provides:

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 § 1443 of this title shall be reviewable by appeal or otherwise.[1]

[3] The Supreme Court in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) held that § 1447(d) bars review of a remand order only if the district court’s basis for remand was § 1447(c), which requires a remand if “it appears that the case was removed improvidently and without jurisdiction

Page 1293

. . . .” 28 U.S.C. § 1447(c). See also Gravitt v. Southwestern Bell Telephone Company, 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977). If the lower court acted on the basis of § 1447(c), review is barred “whether or not that order might be deemed erroneous by an appellate court.” Thermtron, 96 S.Ct. at 593. This circuit has further held that review of a remand order is available under Thermtron only in a case where “a district judge stated openly that he was relying on a non-1447(c) ground for remand.” In re Merrimack Mutual Fire Insurance Company, 587 F.2d 642 (5th Cir. 1978).[2]

[4] Here, the district court judge did not expressly state that he was remanding because of § 1447(c); nor, however, did he “state
openly” that he was remanding on non-1447(c) grounds. On this basis alone, Merrimack apparently would bar our review of the remand order. We further note that the district court’s opinion indicated that it ordered a remand because it believed removal jurisdiction was lacking due to the “saving to suitors” clause of 28 U.S.C. § 1333 and the Eleventh Amendment, both of which are jurisdictional in nature. See Wright Miller, Federal Practice Procedure § 3674 (discussion of effect of “saving to suitors” clause on removal jurisdiction); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974) (Eleventh Amendment “partakes of the nature of a jurisdictional bar”). The district court’s grounds for remand thus appear to have been within section 1447(c)’s purview. [5] Because we are barred by 28 U.S.C. § 1447(d) from reviewing the district court’s order, the appeal is DISMISSED.