Can you appeal a remand order?
The Supreme Court said no today in Powerex Corp. v. Reliant Energy Services, Inc., but civil procedure buffs should be sure to read Breyer’s dissent. I think he likely makes the better argument here, arguing that appeal of a remand order has to be available in a case like this or
the FSIA [Foreign Sovereign Immunity Act] would otherwise fail to achieve Congress’ basic objectives. Context and purpose make clear that few if any members of Congress could have wanted to block appellate review here. Were the Court to pay greater attention to statutory objectives and purposes and less attention to a technical parsing of language, it might agree. Were it to agree, we would exercise our interpretive obligation, not “lawmaking power,” ante, at 13, n. 5, with increased fidelity to the intention of those to whom our Constitution delegates that lawmaking power, namely the Congress of the United States. And, law in this democracy would be all the better for it.
Whew! Who said civil procedure wasn’t a testy subject?
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