Labor & Employment Law Daily Wrap Up, PROCEDURE—5th Cir.: Overruling Weaver, en banc court declares that waiver is not jurisdictional, (May 20, 2025)

By Kathleen Kapusta, J.D.

“Today, we do what only this court sitting en banc can: we correct course and ‘unweave Weaver.’”

In a case arising from a dispute between a Texas law firm and one of its former associates, the en banc Fifth Circuit rejected the “flawed” holding of its 45-year-old In re Weaver decision, which determined that waiver may be characterized as a jurisdictional defect, and instead ruled that waiver-based remand orders do not fall within 28 U.S.C. § 1447(d)’s bar to appellate review. Explaining that its “central task was to correct the flawed Weaver precedent,” the court remanded the case to the original appellate panel—which had “reluctantly” dismissed for lack of jurisdiction the attorney’s appeal of the district court’s remand of his lawsuit to state court—to resolve the remaining issues. Judge Ho, concurring, noted 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” (Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337 (5th Cir. May 16, 2025)).

When the law firm learned that its former associate had attempted to take clients and firm files to his new firm, it fired him and sued him in state court for various state-law torts. During a 17-day period, the firm secured a TRO against the attorney and moved for expedited discovery. In response, the attorney moved to dismiss under the state’s anti-SLAPP statute, which triggered an automatic stay of discovery. The parties, however, later stipulated to a protective order, and the attorney agreed to produce limited materials.

Removal and remand. On the eve of his production deadline, the attorney removed the case to federal court based on diversity jurisdiction. The district court, however, remanded the case, concluding that the attorney had waived his removal right by filing a motion to dismiss in state court.

The attorney appealed and the Fifth Circuit panel, despite acknowledging “that Weaver rests on erroneous premises,” dismissing the appeal for lack of jurisdiction. The panel explained that it was bound by Weaver’s holding that waiver-based remand orders are jurisdictional—and therefore “immune from review.” In a concurrence, Judge Duncan urged the en banc court to “unweave Weaver.”

Section 1447(d) bar. Taking Judge Duncan up on his invitation, the en banc court noted that Congress has placed “broad restrictions on the power of federal appellate courts to review district court orders remanding removed cases to state court,” including Section 1447(d), which states that “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”

Despite this broad language, the Supreme Court held that Section 1447(d) must be read together with Section 1447(c) such that its bar applies only when the remand order rests on the grounds authorized by Section 1447(c). “So construed,” said the court, “§ 1447(d) bars appellate review only 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.”

Turning to the issue here, 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 Section 1447(c)’s two categories—the court pointed to Weaver’s 45-year-old holding that waiver may be characterized as a jurisdictional defect, which places it within Section 1447’s bar on appellate review.

Flawed. Rejecting what it called “Weaver’s flawed holding,” the court declared that “[a] remand on waiver is not jurisdictional.” Subject matter jurisdiction, observed the court, comes from only the Constitution or Congress, and waiver “comes from neither.” Rather, it is a common-law doctrine triggered “when a party voluntarily or intentionally surrenders a known right.” While a party may waive its right to remove a case, that waiver, the court explained, bears no relation to the court’s jurisdiction to hear the case.

Other circuits.Weaver’s reasoning, the court noted, “rests on the single premise: that because the district court believed the case was no longer removable, it must have concluded that jurisdiction was lacking.” Not only did the en banc court find this to be “barely reasoning,” the Tenth Circuit, it noted, could “fathom no explanation” for Weaver, and the Seventh Circuit called it “unsound” and illogical.” These courts, observed the court here, “plus the Eleventh Circuit—have all reached the sounder conclusion: waiver-based remand orders are not jurisdictional. Today we join that consensus and make clear that Weaver was wrongly decided.”

Though the court acknowledged that the Ninth Circuit once reached the opposite conclusion, it pointed out that it never expressly endorsed Weaver’s mistaken premise that waiver affects jurisdiction, it offered no independent reasoning, and its reference to Weaver appeared to have been dicta. Further, the remand order under review in that case rested not only on waiver, but also on untimely removal—an independent and mandatory ground for remand.

Not jurisdictional. “In short,” said the court, waiver is not jurisdictional.” Accordingly, the court joined the prevailing view and made “explicit what the law already implies: waiver-based remand orders do not fall within § 1447(d)’s bar to appellate review.”

Reimagined. Rejecting the law firm’s contention that Weaver treated waiver as a defect in the removal process, the second category of remands covered by Section 1447(c), and therefore shielded from review under Section 1447(d), the court found this “reimagined reading of Weaver defies any plausible interpretation of the opinion.” Weaver, the court explained, held that waiver-based remand orders are unreviewable under Section 1447(c) because they implicate jurisdiction, not because they involve a defect in the removal process.

And even if Weaver could be read to treat waiver-based remands as removal defects, the court explained that it would “still reject that reading. Characterizing waiver as a removal defect is no more defensible than calling it jurisdictional.” The bottom line, said the court, “is this: a ‘defect’ under § 1447(c) must be grounded in a statutory deficiency. This was true when Weaver was decided—and it remains the uniform understanding today.”

Declaring untenable Weaver’s conclusion that waiver-based remand orders are unreviewable, the en banc court overruled it and instead held that waiver through state-court participation is neither jurisdictional nor a removal defect under Section 1447(c) and thus it falls outside Section 1447(d)’s bar on appellate review.

The case is No. 23-20337.

Judge: Willett, D.

Attorneys: Robert Tresch Owen (Martin, Disiere, Jefferson & Wisdom) for Abraham Watkins Nichols Agosto Aziz & Stogner. Guillermo Alberto Alarcon (Armbrust & Brown) for Edward Festeryga.

Companies: Abraham Watkins Nichols Agosto Aziz & Stogner

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