Federal courts are, of course, courts of limited jurisdiction, and they have a duty to ensure that subject matter jurisdiction exists. If they determine that they lack jurisdiction, they must either dismiss or, in cases removed from state court, remand. And remand orders, as most litigators know, are generally unreviewable. But as a recent Fifth Circuit decision illustrates, lawyers practicing in the Fifth Circuit should examine sua sponte remand orders carefully before concluding that they are unappealable. In De Chavez, the court held that a sua sponte remand order based on the removing defendant’s failure to conclusively prove diversity of citizenship was appealable. De Chavez v. United Parcel Serv., Inc., No. 25-11146, 2026 WL 3264176, at *4 (5th Cir. Oct. 30, 2026).
In a removal, the removing defendant bears the burden of showing that federal subject matter jurisdiction exists. If the removal is based on diversity jurisdiction, then the removing defendant must show that diversity of citizenship exists and that the dispute exceeds the minimum amount in controversy. And to show citizenship, the removing defendant must allege more than mere residency because being a resident in a state is not the same as being a citizen of that state.
In De Chavez, the removing defendant alleged “on information and belief” that the plaintiffs were “domiciled in” and were “citizens of” either Texas or El Salvador. Id. at *3. To support its allegation made on information and belief, the removing defendant pointed to the plaintiffs’ original state court petition, which stated the plaintiffs’ residences. Id. The district court sua sponte remanded the case to state court, holding that the removing defendant had failed to establish plaintiffs’ citizenship. Id.
Unlike an order granting a motion to dismiss for lack of subject matter jurisdiction, which can be appealed, a remand order’s appealability is quite limited. Id. at *1. Typically, under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, . . . .” Id. But as subsequent case law has explained, Section 1447(d)’s bar applies only if the remand order is based on Section 1447(c). Id. And so, as the Supreme Court has previously explained, “only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d).” Id. (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996)). Those grounds are procedural defects and lack of subject matter jurisdiction. See id.
But Section 1447(c) treats those two grounds differently. See id. It addresses remands based on procedural defects initiated by a party’s motion while encompassing remands based on lack of subject matter jurisdiction that are made either sua sponte or by a party’s motion. See id. As a result, the appellate bar of Section 1447(d) applies only to remand orders based on a procedural defect if that remand order was initiated by a party’s motion. See id.
For the removing defendant in De Chavez, that meant the appealability of that sua sponte remand order turned on whether the district court’s remand was based on lack of subject matter jurisdiction (which would make it unappealable) or a procedural defect (which would mean the order would be appealable). Id. at *2.
The Fifth Circuit observed that the district court had not found that complete diversity was lacking. Id. Rather, the district court remanded the case because it could not “confirm whether complete diversity of citizenship exists between the parties.” Id. As a result, the Fifth Circuit concluded that the remand order was based on a pleading deficiency in the notice of removal, which, under Fifth Circuit precedent, is a procedural defect rather than a jurisdictional defect. Id. at *2-*3. As a result, the removing defendant could appeal the remand order (and the appeal was successful—the Fifth Circuit held that the allegations made on information and belief were likely sufficient at that early stage of the suit). Id. at *3.
As De Chavez shows, not every sua sponte remand order is unappealable. When a district court remands a removed case on its own initiative, litigators should determine whether the remand rests on an actual lack of subject matter jurisdiction or merely a procedural defect. That distinction may determine whether appellate review is available.
