Hotze Health Wellness Center International One, LLC, et al. v. Environmental Research Center, Inc.

This Court has recently sought to define when 28 U.S.C. § 1447(c)-(d) preclude appeals from remand orders. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640 (2009); Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224 (2007); BP P.L.C. v. Mayor of Baltimore, 141 S.Ct. 1532 (2021). The lower courts and parties need more clarity than these cases give. Petitioners removed a “Proposition 65” bountyhunter suit from state to federal court, premising the removal in part on supplemental jurisdiction to avoid the state’s noncitizen status for diversity purposes. Moreover, under the terms of the bounty-hunter law and its own constitutional injury, the plaintiff has prudential third-party standing—a nonjurisdictional issue that § 1447(c) requires plaintiffs to raise within 30 days of removal or waive—that should be appealable as nonjurisdictional like exercises of jurisdictional discretion under Carlsbad. With these prudential and discretionary issues falling outside § 1447(d)’s bar of appellate review, but nonetheless sounding “jurisdictional,” the Powerex framework of barring appeals when the rationale for remand is “colorably characterized as subject-matter jurisdiction” is too vague to guide courts and parties. Petitioners raised discretionary and prudential arguments against remand, but the district court remanded and awarded attorney fees as “actual expenses” under § 1447(c), with no evidence or claim that the bounty hunter actually paid its counsel. The Ninth Circuit affirmed and found the appeal frivolous. The questions presented are:

1. Whether the appeal was frivolous.

2. Whether the remand and fee order was proper.