Belated Civil-Rights Removal Theories Cannot Salvage Nonappealable Remand Orders: Commentary on Jane F. Girard v. Marissa Girard

I. Introduction

The Seventh Circuit’s decision in Jane F. Girard v. Marissa Girard, No. 25‑1854 (7th Cir. Nov. 25, 2025), sits at the intersection of three recurring themes in federal civil practice:

the limited nature of federal subject-matter jurisdiction in domestic-relations disputes;
the strict statutory bar on appellate review of most remand orders; and
the growing willingness of appellate courts to impose sanctions under Federal Rule of Appellate Procedure 38 for frivolous appeals.

The dispute began as a state-court post‑judgment custody battle between former spouses Jane and Kenton Girard in Cook County, Illinois. After their divorce, Kenton remarried; his new wife, Marissa Girard, eventually became enmeshed in the custody litigation and was added as a party. Kenton then asserted a cross‑claim against Marissa over a “postnuptial” agreement that purported to require him to indemnify her for legal expenses and certain economic losses if Jane’s litigation behavior somehow resulted in violations of Marissa’s federal constitutional or statutory rights.

On the very day Kenton filed that cross‑claim, Marissa removed the entire case to the Northern District of Illinois, claiming federal jurisdiction. The district court swiftly held that the case presented no federal question and remanded it to state court. Marissa then appealed the remand order. The Seventh Circuit dismissed the appeal for lack of appellate jurisdiction and, in the decision under commentary, granted Jane’s motion for Rule 38 sanctions, deeming the appeal “doubly frivolous.”

This opinion is significant not because it breaks fundamentally new doctrinal ground, but because it forcefully reinforces several principles:

Private domestic‑relations and contract disputes—even when they reference federal rights—do not ordinarily create federal-question jurisdiction.
Remand orders based on lack of subject-matter jurisdiction are almost categorically unappealable under 28 U.S.C. § 1447(d) unless the case was removed under § 1442 or § 1443.
Attempting to retroactively recast a removal as a “civil-rights removal” under § 1443, without satisfying the demanding statutory test, is frivolous and sanctionable.
Rule 38 sanctions in the court of appeals are independent of, and not constrained by, the district court’s decision whether to award fees for improper removal under § 1447(c).

II. Summary of the Opinion

A. Procedural Background

After a 2015 divorce judgment in Cook County resolved initial custody issues for their two daughters, Jane and Kenton Girard returned to state court in a series of protracted post‑judgment custody disputes. Kenton remarried; his new spouse, Marissa, became involved in the dispute to such an extent that, in 2023, Jane successfully moved to join Marissa as a third‑party respondent, alleging harmful interference with the parent‑child relationship.

In February 2025, shortly before a scheduled trial on custody issues, Kenton filed a cross‑claim against Marissa. The cross‑claim sought a declaration that he had no obligations under a purported “postnuptial agreement” that allegedly required him to indemnify Marissa for:

her legal expenses; and
any reduction in her earnings

if Jane’s actions in the custody case “proximately caused” a violation of Marissa’s rights under the federal Constitution or federal law.

That same day, Marissa removed the entire matter to federal court. Jane promptly moved to remand, arguing that the case was a purely state‑law domestic‑relations and contract dispute with no substantial federal question. The district court agreed and remanded the case to state court for lack of subject‑matter jurisdiction.

B. The First Seventh Circuit Disposition: Dismissal of the Appeal

Marissa appealed the remand order. The Seventh Circuit issued a jurisdictional order directing her to explain why the appeal should not be dismissed under 28 U.S.C. § 1447(d), which generally bars appellate review of remand orders unless the removal was under:

§ 1442 (federal‑officer or federal‑agency removal), or
§ 1443 (civil‑rights removal).

In response, Marissa claimed she had removed under § 1443 because she faced a “barrage” of motions in state court, allegedly amounting to racial and disability discrimination. The court rejected this belated characterization, finding:

she had not actually removed the case under § 1443; and
she had not satisfied § 1443’s stringent requirements, which demand a showing that a state law formally denies or impedes enforcement of federally protected racial-equality rights.

The Seventh Circuit dismissed the appeal for lack of appellate jurisdiction.

C. The Sanctions Motion Under Rule 38

Following the dismissal, Jane moved for sanctions under Federal Rule of Appellate Procedure 38, seeking her fees and costs incurred on appeal. The court now grants that motion, holding:

The removal itself was frivolous because there was no plausible basis for federal-question jurisdiction.
The appeal from the remand order was frivolous because remand orders in this posture are not appealable under § 1447(d), and Marissa’s after‑the‑fact reliance on § 1443 was baseless.

The court characterizes the appeal as “doubly frivolous” and awards Jane $2,808.75 in damages (fees and costs) as “just and reasonable” under Rule 38.

III. Detailed Analysis

A. Precedents and Authorities Cited

1. Rule 38 Standard for Frivolous Appeals: Upchurch v. O’Brien

The court quotes Upchurch v. O’Brien, 111 F.4th 805, 813 (7th Cir. 2024), for the governing standard:

“An appeal is frivolous when the result is obvious or when the appellant’s argument is wholly without merit.”

That definition frames the inquiry: was it “obvious” that Marissa’s appeal had to fail, or were her arguments wholly meritless? The court answers yes, twice:

First, subject‑matter jurisdiction was plainly lacking.
Second, § 1447(d) plainly barred appellate review of the remand order.

Upchurch also informs the court’s view that prolonging litigation with baseless appeals is a paradigmatic reason to impose Rule 38 sanctions.

2. Cautious Use of Rule 38: Goyal v. Gas Tech. Institute

The court acknowledges the general reluctance to impose sanctions: “Although a decision to impose sanctions under Rule 38 is not one we make lightly…” (citing Goyal v. Gas Tech. Inst., 732 F.3d 821, 823‑24 (7th Cir. 2013)). This signals that the court reserves Rule 38 for clear abuses and that crossing this threshold is notable.

3. Removal Jurisdiction and Federal Questions

Ne. Rural Electric Membership Corp. v. Wabash Valley Power Ass’n, 707 F.3d 883, 890 (7th Cir. 2013)
Cited for the basic proposition that where the parties are not diverse, “the propriety of removal depend[ed] on the existence of a federal question.” Because all parties here were Illinois citizens, Marissa had to show federal-question jurisdiction under 28 U.S.C. § 1331.
American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916)
The classic “arising under” formulation: “A suit arises under the law that creates the cause of action.” Kenton’s cross‑claim was, in substance, a state-law contract dispute about the meaning and enforceability of a postnuptial indemnity agreement. That cause of action was not created by federal law.
Webb v. Financial Industry Regulatory Authority, Inc., 889 F.3d 853, 860 (7th Cir. 2018)
Cited for the idea that it is “rare” for a state‑law claim to support federal-question jurisdiction; only a narrow category of such claims “arise under” federal law via the embedded‑federal‑question doctrine.
Gunn v. Minton, 568 U.S. 251, 258 (2013)
The Supreme Court’s modern articulation of that doctrine: a state‑law claim can “arise under” federal law only if it:
1. necessarily raises a federal issue,
2. that is actually disputed,
3. substantial, and
4. capable of resolution in federal court without disrupting the federal‑state balance approved by Congress.
The Seventh Circuit uses Gunn to underscore that merely referencing federal law in a contract does not automatically create federal jurisdiction.
Minor v. Prudential Securities, Inc., 94 F.3d 1103, 1105 (7th Cir. 1996)
Reinforces that a contract’s reference to federal law does not, by itself, transform a contract dispute into a federal case; the federal question must be substantial and actually disputed.

4. State Law Primacy in Domestic Relations and Contracts

Wisconsin Central Ltd. v. TiEnergy, LLC, 894 F.3d 851, 854 (7th Cir. 2018)
Cited for the proposition that contract disputes are the bread and butter of state law and do not ordinarily implicate federal jurisdiction.
Allen v. Allen, 48 F.3d 259, 261 (7th Cir. 1995)
A key domestic‑relations jurisdiction case. Federal courts routinely decline to exercise jurisdiction over divorce, alimony, and child‑custody matters, recognizing that these are “quintessentially” state-law domains. While Allen is often cited in the context of the “domestic relations exception,” here it underscores how far removed this custody and postnuptial dispute is from the federal courts’ proper sphere.

5. Appealability of Remand Orders and the § 1447(d) Bar

28 U.S.C. § 1447(d)
The pivotal statute: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,” with the sole exception for cases removed under § 1442 or § 1443. This is jurisdictional and admits of no equitable exceptions.
Phoenix Container, L.P. v. Sokoloff, 235 F.3d 352, 354–55 (7th Cir. 2000)
The court cites its long‑standing reminders that remand orders under § 1447(c) are “ordinarily not appealable.” Phoenix Container is one of several cases where the Seventh Circuit enforced § 1447(d) strictly.
Northern League, Inc. v. Gidney, 558 F.3d 614, 614 (7th Cir. 2009) (per curiam)
Reaffirms that remand orders are unreviewable whether or not correct, unless removal was under § 1442 or § 1443.
Mac Naughton v. Asher Ventures, LLC, 76 F.4th 539, 543 (7th Cir. 2023)
Two critical points come from this case:
- First, Mac Naughton reiterates that § 1447(d) generally bars appeals of remand orders except for § 1442 or § 1443 removals.
- Second, and more importantly for sanctions, it holds that litigants “risk Rule 38 sanctions when they litigate in the face of controlling authority that they pretend does not exist.” The court uses this to justify sanctions where an appellant ignores or tries to circumvent clear jurisdictional rules such as § 1447(d).

6. Civil-Rights Removal Under 28 U.S.C. § 1443

28 U.S.C. § 1443
Allows removal of certain civil-rights cases where the defendant is denied or cannot enforce equal civil rights in state court. It is narrow, historically focused on racial equality, and demands a specific showing.
Fenton v. Dudley, 761 F.3d 770, 773–75 (7th Cir. 2014)
Provides the governing interpretation of § 1443 in the Seventh Circuit. Two requirements are especially important:
1. The rights allegedly denied must arise under a federal law “providing for specific civil rights stated in terms of racial equality.”
2. The denial must be traceable to a formal expression of state law (e.g., a statute, rule, or constitutional provision) that prevents enforcement of those rights in state court, not merely discriminatory behavior or adverse rulings in an individual case.
Marissa’s claim that a “barrage” of motions and alleged discrimination justified § 1443 removal falls drastically short of this standard.

7. Frivolous Appeals and “Guaranteed to Lose” Cases

McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783, 791 (7th Cir. 2019)
The court invokes McCurry’s striking phrase: when a party is “guaranteed to lose” on appeal due to clear, controlling law, pressing ahead is an indicator of frivolousness and may justify sanctions.

B. The Court’s Legal Reasoning

1. No Federal-Question Jurisdiction Over the Removed Case

The court first analyzes the underlying removal. Because all parties are Illinois citizens, diversity jurisdiction is unavailable. Thus, as Ne. Rural Electric frames it, the “propriety of removal depend[ed] on the existence of a federal question.”

The purported basis for federal jurisdiction was Kenton’s cross‑claim concerning the postnuptial indemnity agreement, which referred to federal constitutional and statutory rights. The Seventh Circuit, aligning with American Well Works and Gunn, reasons:

The cross‑claim is fundamentally a state‑law contract dispute—whether Kenton has obligations under an indemnity clause in a postnuptial agreement.
Under American Well Works, the suit “arises under” the law creating the cause of action. That law here is state contract law, not federal law.
Under Gunn and Webb, only a small subset of state-law claims that embed a federal issue qualify for federal-question jurisdiction. For that to occur, the claim must necessarily raise an actually disputed, substantial federal question whose resolution in a federal forum will not upset the federal‑state balance.
- Merely referencing “federal rights” in a private indemnity clause does not make the federal issue necessary or substantial.
- The controversy is not about the interpretation of federal law in the abstract but about the parties’ contractual obligations if such a violation were to occur.

The court further emphasizes that domestic-relations and contract matters are, by long tradition, the province of state law. Citing Wisconsin Central and Allen, the opinion stresses that the core of the litigation—child custody and a marital agreement—is “quintessentially” state-law subject matter.

Conclusion: the remand for lack of subject‑matter jurisdiction was “unassailable,” leaving Marissa “guaranteed to lose” any appeal of that determination. This is the first layer of frivolousness.

2. Remand Orders Are Not Appealable Under § 1447(d) Absent § 1442 or § 1443 Removal

The second, and in some ways even clearer, jurisdictional defect lies in 28 U.S.C. § 1447(d). The statute categorically prohibits appellate review of remand orders issued under § 1447(c) (for lack of subject‑matter jurisdiction or defects in removal procedure), except when the case was removed under § 1442 or § 1443.

The court notes that it has “consistently reminded litigants” of this rule, citing, among others, Phoenix Container and Northern League. Those cases reinforce that:

The bar applies even if the district court arguably erred in remanding.
The court of appeals lacks jurisdiction “regardless of whether the decision was correct.”

Here, Marissa did not rely on § 1442 or § 1443 in her removal notice. She invoked those provisions only belatedly—after the court’s jurisdictional order questioned the appeal—by arguing that she had been subject to discrimination in state court. The Seventh Circuit rejects this maneuver on two grounds:

Timing: A removal’s basis is determined from the face of the removal papers; Marissa “had not removed the case under § 1443” in the first place. One cannot retroactively recharacterize a removal theory in response to a jurisdictional problem on appeal.
Substance: Even if the removal had been labeled as § 1443 from the outset, it would still fail the Fenton test. Marissa:
- did not identify a “racial-equality” right protected by a specific federal civil-rights law; and
- did not point to any state statute, rule, or other formal expression of law that prevented enforcement of such rights in state court.
Her allegations amounted instead to claims that general legal principles were applied in a discriminatory fashion against her. That is insufficient under § 1443.

The court characterizes this belated invocation of § 1443 as “tardy and contrived” and ultimately “frivolous.” Because § 1447(d) plainly barred appellate review, the appeal was jurisdictionally doomed from the start. This constitutes the second, independent layer of frivolousness.

3. Rule 38 Sanctions and Their Independence from District Court Fee Awards

Marissa attempted to avoid sanctions by arguing:

the district court declined to award fees for improper removal under § 1447(c), and
therefore, Jane’s attempt to obtain fees in the court of appeals required a cross‑appeal from that refusal.

The Seventh Circuit rejects this argument outright. The key points are:

Different sources of authority: 28 U.S.C. § 1447(c) governs fee awards at the district‑court level for improper removal. Rule 38 provides separate authority for the court of appeals to award “just damages and single or double costs” for frivolous appeals.
No cross‑appeal needed: Jane’s request for Rule 38 sanctions is not an attempt to overturn or modify the district court’s § 1447(c) decision. It seeks a different remedy for different conduct—namely, Marissa’s frivolous appeal rather than her frivolous removal. As a result, no cross‑appeal is necessary.
Independent appellate power: As Mac Naughton indicates, the court of appeals retains authority to impose sanctions for frivolous appellate conduct even where the district court declined to sanction the initial removal.

Thus, any restraint the district judge may have shown in declining a § 1447(c) fee award does not limit the Seventh Circuit’s power to impose sanctions for the separate and subsequent abuse of filing and pursuing an obviously baseless appeal.

4. Assessment of Frivolousness and Bad Faith

In determining whether Rule 38 sanctions are warranted, the court examines both objective frivolousness and indicators of subjective bad faith:

Objective factors:
- No colorable argument existed for federal-question jurisdiction over a custody‑related contract dispute.
Subjective indicators:
- Marissa’s removal of a plainly state‑court domestic-relations case, on the eve of trial, strongly suggests a tactical delay motive.
- When confronted with a jurisdictional order, she tried to retrofit her case into § 1443 by making sweeping allegations of discrimination, without pointing to the necessary state‑law impediment required by Fenton.
- After the appeal was dismissed, she moved for rehearing and sought more time to pursue Supreme Court review, further prolonging the litigation.

The court concludes that these factors refute Marissa’s claim of “good faith” and justify viewing the appeal as an intentional misuse of the appellate process. Under such circumstances, Rule 38 sanctions are “warranted.” The court then assesses the requested amount—$2,808.75—as “modest,” “just,” and “reasonable.”

C. Impact and Significance

1. Reinforcement of the Limits of Federal Jurisdiction in Domestic-Relations Contexts

The opinion underscores a theme deeply embedded in federal jurisprudence: child‑custody disputes and related intrafamily issues, including marital contracts such as postnuptial agreements, belong in state courts absent a truly exceptional federal issue. Attempts to “federalize” routine domestic-relations or family‑contract matters by sprinkling references to federal constitutional rights into private agreements will not normally succeed.

For practitioners, this is a strong reminder that:

drafting a marital or postnuptial agreement that references federal rights does not create an easy path to federal court; and
efforts to remove custody proceedings on such bases will face swift remand and potential fee‑shifting.

2. A Clear Warning About Appeals of Remand Orders

The Seventh Circuit reiterates that it has “consistently reminded litigants” that remand orders are “ordinarily not appealable.” By invoking Mac Naughton and similar cases, the court sends a sharp warning:

Litigants who file appeals from remand orders without a well‑grounded argument under § 1442 or § 1443 do so “in the face of controlling authority” and risk Rule 38 sanctions.
Belated or contrived arguments that a case was “really” a § 1443 civil-rights removal, offered only after jurisdiction is questioned, will be scrutinized and may themselves be treated as evidence of frivolousness.

This opinion thus strengthens the deterrent effect against using appeals of remand orders as delay tactics—particularly in time‑sensitive areas like child custody.

3. Clarifying the Narrow Scope of § 1443 Civil-Rights Removal

By relying on Fenton, the court emphasizes that § 1443 is not a catch‑all mechanism for any litigant who believes state courts are biased or unfair. It applies only where:

the asserted right is a specific federal civil right in terms of racial equality; and
a state statute or other formal law effectively bars enforcement of that right in the state courts.

Simple allegations that a particular judge, lawyer, or opposing party is acting in a discriminatory or abusive manner are not enough. This is especially important because § 1443 has sometimes been misunderstood or invoked by pro se litigants in domestic or criminal matters based on generalized dissatisfaction with state proceedings. Girard reinforces that such uses are not just wrong but, when used as a vehicle for jurisdictional gamesmanship, can be sanctionable.

4. Independence and Robustness of Appellate Sanctions Under Rule 38

The decision makes clear that the court of appeals’ authority to impose Rule 38 sanctions:

does not depend on whether the district court granted or denied fees for improper removal under § 1447(c); and
does not require a cross‑appeal when the appellee seeks sanctions based on conduct in the appellate court itself.

The appellate bench is signaling a willingness to use Rule 38 as a tool to:

protect judicial resources;
deter abusive litigation strategies; and
prevent litigants from “pretend[ing]” that controlling jurisdictional limits do not exist (Mac Naughton).

For lawyers, this underscores the professional obligation to:

research candidly whether a remand order is appealable before filing a notice of appeal; and
counsel clients against meritless jurisdictional theories, especially those that attempt to recast an obviously state‑law matter as a federal civil-rights controversy without satisfying the rigor of § 1443.

IV. Complex Concepts Simplified

1. Removal and Remand

Removal is when a defendant (or sometimes another party) takes a case filed in state court and transfers it to federal court, invoking statutes like 28 U.S.C. § 1441 (general removal) or specialized statutes like § 1442 or § 1443.
Remand is when the federal court sends the case back to state court, often because it lacks jurisdiction or because the removal was procedurally defective.

2. Federal-Question Jurisdiction

Federal courts can hear “federal-question” cases—those “arising under” the Constitution, laws, or treaties of the United States—under 28 U.S.C. § 1331.
Usually, this means the plaintiff’s main claim is based on federal law (e.g., a civil-rights claim under 42 U.S.C. § 1983).
In rare circumstances, a state-law claim can nonetheless “arise under” federal law if it necessarily turns on a substantial, disputed federal issue that can be resolved in federal court without upsetting the federal‑state balance (Gunn v. Minton).
Simply mentioning federal law in a contract or raising a federal defense does not make a case a “federal-question” case.

3. Domestic-Relations Exception

Although not discussed at length as a formal “exception,” the opinion rests on a familiar background principle: federal courts generally avoid:

granting divorces,
awarding alimony, or
determining child custody.

These issues are better handled by state courts, which have specialized procedures and expertise. That is why a child‑custody and postnuptial indemnity dispute like this one “clearly belonged in state court.”

4. 28 U.S.C. § 1447(d): The Bar on Appealing Remand Orders

Section 1447(d) is extremely powerful and very simple:

If a federal district court remands a case back to state court because it lacks jurisdiction (or because of certain procedural defects), that order generally cannot be appealed.
There are only two narrow exceptions: when the case was removed under § 1442 (federal officers) or § 1443 (certain civil‑rights cases).
Without one of those exceptions, the court of appeals must dismiss the appeal—no matter how much the appellant disagrees with the remand.

5. 28 U.S.C. § 1443: Civil-Rights Removal

Section 1443 lets certain defendants move their cases to federal court if:

they rely on a federal law that explicitly grants civil rights in terms of racial equality; and
state law (like a statute or rule) prevents those rights from being enforced in state court.

It is not enough to say, “the judge is biased,” or “the other side is targeting me because of my race.” The barrier must be systemic and formal (e.g., a discriminatory statute), and the right must be one of racial equality. Marissa’s generalized allegations of discrimination, linked to a barrage of motions, did not meet this standard.

6. Federal Rule of Appellate Procedure 38: Sanctions for Frivolous Appeals

Rule 38 allows a federal court of appeals to order a party to pay:

“just damages”; and
“single or double costs”

if the court determines that an appeal is frivolous. In practice, this often means:

the appellant must reimburse the appellee for reasonable attorneys’ fees and expenses incurred defending the appeal; and
sometimes, an additional penalty (double costs) may be imposed.

An appeal is “frivolous” when:

the answer under existing law is obvious; or
the arguments have no merit whatsoever.

V. Conclusion

Jane F. Girard v. Marissa Girard is a firm restatement of several important jurisdictional and procedural principles:

Federal courts are courts of limited jurisdiction. Domestic‑relations and contract disputes, even when they reference federal rights, rarely belong in federal court.
Remand orders issued for lack of subject‑matter jurisdiction are almost always unreviewable on appeal. Section 1447(d) erects a near‑absolute bar, with only narrow statutory exceptions.
Section 1443 civil‑rights removal is a tightly constrained remedy, focused on racial-equality rights and formal state-law barriers. It is not a catch‑all for litigants dissatisfied with state‑court proceedings.
Appellate courts will not hesitate to impose Rule 38 sanctions when litigants pursue appeals that ignore settled law—especially where those appeals appear designed to delay state‑court proceedings or to harass opposing parties.
Rule 38 sanctions in the court of appeals are independent of the district court’s discretion under § 1447(c); a refusal to award fees for improper removal does not preclude sanctions for a frivolous appeal.

The decision is thus less about innovating doctrine and more about enforcing it: reinforcing boundaries on federal jurisdiction, ensuring respect for congressionally mandated limits on appellate review, and protecting both litigants and judicial resources from plainly baseless appellate maneuvers. For practitioners, especially in the Seventh Circuit, the case stands as a clear caution against using removal and appellate procedures as tools of delay in routine state‑law disputes—and a reminder that attempting to retrofit a civil‑rights theory onto such a dispute, without satisfying § 1443’s stringent requirements, may yield not a federal forum, but financial sanctions.