Wakat v. Winn: Appellate Review of Remand Orders When § 1442 Is Asserted, and the Finality Trap for Fee-Award Appeals

1. Introduction

Parties and posture. In consolidated appeals, August Wakat (pro se) sought federal review after the district court (N.D. Okla.) remanded (i) an Oklahoma state-law foreclosure action brought by Henry J. Winn and Linda I. Winn to the District Court of Wagoner County, Oklahoma, and (ii) two Texas state criminal cases to the District Court of Houston County, Texas. The district court also awarded costs and fees to Mr. Winn in both matters, later fixing the amounts.

Key issues. The Tenth Circuit addressed (1) whether it had appellate jurisdiction to review the remand orders in light of 28 U.S.C. § 1447(d), given that Mr. Wakat’s notices of removal cited 28 U.S.C. § 1442(a)(1); (2) whether the remands should be disturbed on the merits; and (3) whether it had jurisdiction to review the costs-and-fees awards when the notices of appeal were filed before the amounts were determined.

2. Summary of the Opinion

The Tenth Circuit held it had jurisdiction under § 1447(d) to review both remand orders because Mr. Wakat’s notices of removal asserted removal “under”/“pursuant to” § 1442(a)(1), satisfying the “removed pursuant to” requirement as explained in BP P.L.C. v. Mayor & City Council of Balt.

On the merits, the court affirmed both remand orders because Mr. Wakat waived appellate review of the district court’s dispositive grounds: he did not properly preserve (or argue plain error as to) diversity jurisdiction for the foreclosure case, did not challenge the § 1442 defect findings, and did not challenge other procedural-removal defects.

The court dismissed for lack of appellate jurisdiction Mr. Wakat’s challenges to the costs and fees awards because, when he appealed, the district court had not yet fixed the amounts; after the amounts were set, he failed to file new or amended notices of appeal.

3. Analysis

A. Precedents Cited

1) Liberal construction of pro se filings

  • Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991): The panel reiterated that pro se submissions are construed liberally, framing how it read Mr. Wakat’s filings—but liberal construction did not excuse jurisdictional and waiver rules.

2) The appellate bar to reviewing remand orders—and the § 1442 exception

  • Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 229 (2007): Used to emphasize that appellate review of remand orders is “substantially limited by statute,” setting the baseline for the § 1447(d) analysis.
  • Miller v. Lambeth, 443 F.3d 757, 759 (10th Cir. 2006): Cited for the key framework: remands based on § 1447(c) grounds (lack of subject-matter jurisdiction or procedural defects) are generally insulated from review, unless removal was “pursuant to” § 1442 or § 1443.
  • BP P.L.C. v. Mayor & City Council of Balt., 593 U.S. 230, 238, 246 (2021): Central to jurisdiction. The panel applied BP’s rule that a case is removed “pursuant to” § 1442 if the notice of removal asserts removability “in accordance with or by reason of” § 1442—even if the assertion is frivolous. This foreclosed arguments that the court should deny appellate jurisdiction because § 1442 removal lacked merit.
  • Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 636 (2009) and City of Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1092 (10th Cir. 2017): Used to support the characterization of § 1447(d) as a jurisdictional limitation.
  • Colorado v. Lopez, 919 F.2d 13 1, 13 2 (10th Cir. 1990), First Union Mortg. Corp. v. Smith, 229 F.3d 992, 994 (10th Cir. 2000), and Lopez v. Cantex Health Care Ctrs. II, LLC, No. 23-2038, 2023 WL 7321637 at *2 (10th Cir. Nov. 7, 2023) (unpublished): These cases were invoked to show the Tenth Circuit’s consistent practice: citing § 1442 or § 1443 in the notice of removal is enough to trigger appellate jurisdiction to review a remand order under § 1447(d).

3) Preservation, forfeiture, waiver, and plain error

  • Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011): The court relied on Richison to reject Mr. Wakat’s new diversity-jurisdiction theory for the foreclosure case because he did not raise it below and did not argue plain error on appeal.
  • Tompkins v. U.S. Dep't of Veterans Affs., 16 F.4th 733, 735 n.1 (10th Cir. 2021): Cited to explain that while courts must consider subject-matter jurisdiction obstacles, they are not required to entertain waived arguments that might have supported jurisdiction.
  • Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020): The panel applied Sawyers to find waiver: issues not raised in the opening brief are abandoned, which disposed of challenges to the remand rationales in both appeals.

4) Appellate jurisdiction over fee/sanctions awards and finality

  • Collins v. Daniels, 916 F.3d 1302, 1319 (10th Cir. 2019): Provided the rule that an appeal of sanctions/fee awards generally cannot be taken until the amount is determined.
  • HCG Platinum, LLC v. Preferred Prod. Placement Corp., 873 F.3d 1191, 1199 n.8 (10th Cir. 2017): The court used HCG Platinum to hold that, once the district court later fixed amounts, Mr. Wakat needed a new or amended notice of appeal to confer jurisdiction over those later orders.
  • United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010): Cited for judicial notice of district court documents (the later fee-amount rulings) not designated on appeal.

B. Legal Reasoning

1) Jurisdiction to review the remand orders: “pursuant to § 1442” means “asserted in the notice”

The court treated § 1447(d) as the gatekeeper for appellate review. Normally, remand orders are unreviewable, particularly when based on § 1447(c) (subject-matter jurisdiction or procedural defects). But the statute creates an express carve-out for cases removed under § 1442 or § 1443.

Applying BP P.L.C. v. Mayor & City Council of Balt., the panel held that a defendant removes “pursuant to” § 1442 if the notice of removal states § 1442 as a basis. Merit is irrelevant for this jurisdictional doorway—even a frivolous § 1442 assertion is enough to permit appellate review of the remand order. Because Mr. Wakat’s notices explicitly invoked § 1442(a)(1), the court could review the remands.

2) Merits: affirmance via waiver rather than substantive removal analysis

Although the district court had remanded on multiple grounds (no § 1441 jurisdiction; no factual basis for § 1442 officer removal; and procedural defects such as lack of consent in the foreclosure case), the Tenth Circuit’s merits analysis turned primarily on appellate waiver.

  • Foreclosure case. Mr. Wakat argued diversity on appeal, but because he did not raise it below and did not argue plain error, the court declined to consider it under Richison v. Ernest Grp., Inc.. He also did not challenge the district court’s independent § 1442 rationale (failure to provide facts showing he was a federal representative) or the procedural-removal defect finding; under Sawyers v. Norton, those omissions waived review.
  • Texas criminal removals. The district court remanded because § 1441(a) does not apply to criminal actions and because § 1442(a)(1) did not apply (no showing he was a federal officer/agent). Mr. Wakat’s opening brief challenged neither basis; under Sawyers, he waived review, compelling affirmance.

3) Fee/cost appeals: premature notice + no amended notice = no jurisdiction

Mr. Wakat attempted to appeal the costs-and-fees awards. But at the time he filed his notices of appeal, the district court had not yet determined the amount. Under Collins v. Daniels, appellate jurisdiction does not attach to a sanctions/fee award until the amount is set. When the district court later fixed the amounts, Mr. Wakat needed to file a new or amended notice of appeal; HCG Platinum, LLC v. Preferred Prod. Placement Corp. made the absence of such a filing jurisdictionally fatal.

C. Impact

  • Clarifies the jurisdictional “switch” for remand appeals in § 1442 cases. In practical terms, the decision underscores that the appellate court’s ability to review a remand order can turn on whether § 1442 is asserted in the notice of removal, not whether § 1442 removal is ultimately viable. This aligns Tenth Circuit practice with BP P.L.C. v. Mayor & City Council of Balt. and signals to litigants that § 1447(d)’s exception is triggered at the pleading stage.
  • Reinforces strict appellate waiver doctrine—even in jurisdiction-adjacent disputes. The panel’s affirmance rested heavily on waiver rules: failure to challenge independent remand grounds is outcome-determinative, even where jurisdictional concepts are in the background.
  • Warns about “finality” and notices of appeal for fee awards. The dismissal of the fee issues highlights a recurring trap: appealing before the amount is determined (and then failing to amend after quantification) forfeits appellate review.
  • Officer-removal assertions must be fact-supported to succeed. While jurisdiction to review was broad, success on the merits was not: conclusory claims of being a federal officer or agent, without supporting facts, will not sustain § 1442 removal.

4. Complex Concepts Simplified

  • Removal vs. remand. “Removal” is moving a case from state court to federal court. “Remand” sends it back to state court.
  • § 1441(a). General civil removal statute: applies when federal courts would have had original jurisdiction (typically federal question or diversity). It does not authorize removal of state criminal prosecutions.
  • § 1442(a)(1) (federal officer removal). Allows removal of certain civil actions or criminal prosecutions against the United States, its agencies, or officers (and those acting under them) for acts connected to federal office. A bare assertion of officer status is not enough on the merits; courts expect a factual showing.
  • § 1447(c) and § 1447(d). Section 1447(c) covers remands for lack of subject-matter jurisdiction or procedural defects. Section 1447(d) generally bars appeals of remand orders, but allows appeals when removal was pursuant to § 1442 or § 1443.
  • “Removed pursuant to” § 1442. After BP P.L.C. v. Mayor & City Council of Balt., it’s enough that the notice of removal says § 1442 is a basis—this opens the door to appellate review of the remand order even if § 1442 is weak.
  • Waiver vs. forfeiture and “plain error.” If a party fails to raise an argument in the district court, it is typically forfeited; on appeal, the party must often argue “plain error” to revive it. Separately, if a party fails to raise an issue in the opening appellate brief, it is waived (abandoned) and usually cannot be considered.
  • Fee award finality. A fee/sanctions order is usually not appealable until the dollar amount is fixed. If the amount is fixed later, the appellant must file a new or amended notice of appeal to reach that later order.

5. Conclusion

Wakat v. Winn illustrates three durable appellate lessons in removal litigation: (1) invoking § 1442(a)(1) in a notice of removal is enough to secure appellate jurisdiction to review a remand order under § 1447(d), consistent with BP P.L.C. v. Mayor & City Council of Balt.; (2) appellate courts will affirm remands when appellants fail to challenge independent remand grounds in their opening briefs, regardless of pro se status; and (3) fee-award review is jurisdictionally unforgiving—appeals filed before amounts are set, without later amended notices, will be dismissed.