Limits of Appellate Review for Combined Arbitration Denial and Remand Under 28 U.S.C. § 1447(d)

Introduction

This commentary examines the Eleventh Circuit’s decision in Fu Jing Wu a.k.a. Leo Wu v. Chun Liu, No. 24-10397 (11th Cir. Mar. 19, 2025). The Court addressed whether 28 U.S.C. § 1447(d)’s bar on appellate review of remand orders extends to an order that simultaneously denied a motion to compel arbitration under the Federal Arbitration Act (“FAA”) and remanded the case for lack of subject-matter jurisdiction. Plaintiff-Appellant Wu and co-defendant Lam had removed a Florida state-court fraud action under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention”) provision of the FAA (9 U.S.C. § 205) and sought to compel arbitration of the investor’s claims. The district court denied arbitration and remanded for lack of jurisdiction. On appeal, the Eleventh Circuit held that § 1447(d) prohibits review of such combined orders, and dismissed the appeal for want of jurisdiction.

Summary of the Judgment

The Court’s key holdings and outcome can be summarized as follows:

The statutory bar of 28 U.S.C. § 1447(d) on appellate review of remand orders applies to an order that both denies arbitration under FAA § 206 and remands the case to state court for lack of subject-matter jurisdiction.
The Federal Arbitration Act’s provisions for removal (9 U.S.C. § 205) and appeal of arbitration-denial orders (9 U.S.C. § 16(a)(1)(C)) do not override § 1447(d) absent an express statutory exception to the remand-order bar.
Neither the “matter-of-substantive-law” exception nor the Waco “split-order” exception to § 1447(d) supplies jurisdiction, because the district court’s arbitration ruling was inseparable from its jurisdictional remand and would remain nonreviewable and non-preclusive in state court.
The appeal was therefore dismissed for lack of appellate jurisdiction.

Analysis

Precedents Cited

28 U.S.C. § 1447(d): Establishes an almost absolute bar on appellate review of remand orders based on lack of subject-matter jurisdiction or procedural defects.
9 U.S.C. § 205–206: Provide for removal of actions “relating to” Convention arbitration agreements and for motions to compel arbitration in federal court.
9 U.S.C. § 16(a)(1)(C): Permits appeal of district-court orders denying motions to compel arbitration in originally filed federal cases.
Kircher v. Putnam Funds Trust, 547 U.S. 633 (2006): Held that § 1447(d) applies equally to removal under specialized statutes absent clear exceptions.
Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224 (2007): Described the Waco split-order exception, allowing appeal of a dismissal of a claim joined with remand.
Aquamar S.A. v. Del Monte Fresh Produce N.A., 179 F.3d 1279 (11th Cir. 1999): Distinguishes the “substantive-law” exception (review of remand based on merits) from jurisdictional remands.
Snapper, Inc. v. Redan, 171 F.3d 1249 (11th Cir. 1999): Permitted review of a remand based on a forum-selection clause, but was confined to cases where subject-matter jurisdiction lay in federal court.

Legal Reasoning

The Court’s reasoning unfolds in several steps:

Statutory Text and Structure: Section 205 of the FAA incorporates “the procedure for removal of causes otherwise provided by law,” referencing §§ 1441–1447. Section 1447(d) contains no carve-out for FAA-Convention removals. Thus, FAA § 16(a)(1)(C)’s general grant of appealability for arbitration-denial orders does not implicitly repeal or override § 1447(d)’s remand-order bar.
Presumption Against Implied Repeal: Absent clear congressional language, removal under § 205 remains subject to §§ 1447(d)–(e). Congress knows how to create appellate exceptions (e.g., appeals from FDIC remands) yet did not do so here.
Substantive-Law Exception Does Not Apply: That exception allows review of orders resolving substantive claims in a way that state courts cannot revisit. Here, the district court’s arbitration ruling was a jurisdictional prerequisite, not a separable merits determination.
Waco Split-Order Exception Fails: Even if one treats the arbitration ruling as distinct from the remand, it is not conclusive in state court; state courts remain free to decide the arbitration question anew. Thus it lacks the “conclusive effect” required by Waco.
Kircher Confirmation: The Supreme Court in Kircher held that § 1447(d) bars review of remand orders whose reasoning overlaps the merits of a federal question, leaving state courts free to disagree.

Impact

This decision clarifies the interplay between the FAA’s removal and appeal provisions and the general remand-order bar:

Litigants invoking 9 U.S.C. § 205 to remove Convention-based arbitration disputes cannot circumvent § 1447(d) by styling their appeal as an “arbitration denial” under § 16.
District courts in the Eleventh Circuit—and likely other circuits following similar reasoning—will remand Convention removals without fear that an arbitration-denial order can be carved out for appellate review.
State courts will retain the first and last word on both jurisdiction and enforceability of arbitration clauses in Convention cases removed under § 205.
The decision may encourage early resolution of arbitrability issues in state court, since federal courts cannot guarantee review of a combined denial/remand order.

Complex Concepts Simplified

Remand Orders and § 1447(d): If a case removed from state court is sent back (“remanded”) because the federal court lacks subject-matter jurisdiction, § 1447(d) generally forbids any appeal of that remand.
Convention Removal (9 U.S.C. § 205): Allows defendants in state court to remove cases “relating to” international arbitration agreements covered by the United Nations Convention, even if the plaintiff’s complaint does not allege a federal question.
Arbitration-Denial Appeals (9 U.S.C. § 16): Permits appeal of orders denying motions to compel arbitration in federal cases originally filed in federal court—but does not necessarily apply to removed Convention cases remanded under § 1447(d).
Substantive-Law Exception: A narrow rule that sometimes allows appeal of a remand that decides a substantive issue state courts cannot revisit—e.g., patent validity—so long as that issue is separate from jurisdiction.
Waco Split-Order Exception: If the federal court issues two distinct orders—a remand plus a dismissal of a separate claim or party—an appeal of the dismissal may be allowed if it conclusively alters the state-court case.

Conclusion

The Eleventh Circuit’s decision in Fu Wu v. Chun Liu reinforces the primacy of 28 U.S.C. § 1447(d)’s bar on appellate review of remand orders, even when they coincide with denials of Convention-based arbitration motions. By refusing to engraft an exception for FAA § 205 removals, the Court ensures that state courts retain control over both jurisdiction and arbitrability in these cases. Practitioners should therefore anticipate that challenges to arbitrability in Convention removals will be resolved—and finally determined—in state court proceedings, without further federal appellate review.