POWEREX CORP. v. RELIANT ENERGY SERVICES, INC., et al.

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224 OCTOBER TERM, 2006
Syllabus
POWEREX CORP. v. RELIANT ENERGY SERVICES,
INC., et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 05–85. Argued April 16, 2007—Decided June 18, 2007
Plaintiffs-respondents filed state-court suits alleging that various compa
nies in California’s energy market had conspired to fix prices in violation
of state law. Some of the defendants filed cross-claims seeking indem
nity from, inter alios, two United States Government agencies (BPA
and WAPA); a Canadian corporation (BC Hydro) wholly owned by Brit
ish Columbia and thus a “foreign state” under the Foreign Sovereign
Immunities Act of 1976 (FSIA); and petitioner Powerex, a wholly owned
subsidiary of BC Hydro. The cross-defendants removed the entire case
to federal court, with BC Hydro and petitioner relying on the FSIA.
Plaintiffs-respondents moved to remand, arguing that petitioner was not
a foreign state and that the cross-claims against BPA, WAPA, and BC
Hydro were barred by sovereign immunity. The District Court agreed
and remanded. As relevant here, petitioner appealed, arguing that it
was a foreign sovereign under the FSIA, but plaintiffs-respondents
rejoined that the appeal was jurisdictionally barred by 28 U. S. C.
§ 1447(d), which provides that “[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal or other
wise.” The Ninth Circuit held that § 1447(d) did not preclude it from
reviewing substantive issues of law that preceded the remand order,
but affirmed the holding as to petitioner’s foreign-state status.
Held: Section 1447(d) bars appellate consideration of petitioner’s claim
that it is a foreign state for FSIA purposes. Pp. 229–239.
(a) Appellate courts’ authority to review district-court orders re
manding removed cases to state court is substantially limited by statute.
Section 1447(d) is read in pari materia with § 1447(c), so that only
remands based on the grounds specified in the latter are shielded by
the review bar mandated by the former. Thermtron Products, Inc. v.
Hermansdorfer, 423 U. S. 336, 345–346. For purposes of this case, it is
assumed that the grounds specified in § 1447(c) are lack of subject
matter jurisdiction and defects in removal procedure. Cf. Quacken
bush v. Allstate Ins. Co., 517 U. S. 706, 711–712. Given the proceedings
below, review of the remand order is barred only if it was based on lack
of subject-matter jurisdiction. Pp. 229–230.

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(b) Nothing in § 1447(c)’s text supports the claim that a case cannot
be remanded for lack of subject-matter jurisdiction within the meaning
of that provision if the case was properly removed in the first instance.
Indeed, statutory history conclusively refutes the argument that
§ 1447(c) is implicitly limited in such a manner. When a district court
remands a properly removed case because it nonetheless lacks subject
matter jurisdiction, the remand is covered by § 1447(c) and shielded from
review by § 1447(d). Pp. 230–232.
(c) The District Court relied upon a ground that is colorably charac
terized as subject-matter jurisdiction and so § 1447(d) bars appellate re
view. As an initial matter, it is clear from the record that the court
was purporting to remand for lack of subject-matter jurisdiction. Even
assuming that § 1447(d) permits appellate courts to look behind a district
court’s characterization of the basis for the remand, such review is
hereby limited to ascertaining whether the characterization was color
able. In this case, the only plausible explanation of the District Court’s
remand was that it believed that it lacked the power to adjudicate the
claims against petitioner once it had determined that petitioner was
not a foreign state and that the other cross-defendants had sovereign
immunity. It is unnecessary to determine whether that belief was cor
rect; it was at least debatable. Petitioner contends instead that the
District Court was actually remanding based on Carnegie-Mellon Univ.
v. Cohill, 484 U. S. 343, 357, which authorizes remand when a district
court declines to exercise supplemental jurisdiction. This is implausi
ble. The District Court never mentioned the possibility of supplemen
tal jurisdiction, and petitioner does not appear to have argued that the
claims against it could be retained based on supplemental jurisdiction.
Pp. 232–235.
(d) The Ninth Circuit held that § 1447(d) does not preclude reviewing
a district court’s substantive determinations that precede a remand
order, a holding that appears to be premised on Waco v. United States
Fidelity & Guaranty Co., 293 U. S. 140. Waco, however, does not per
mit an appeal when, as here, there is no order separate from the unre
viewable remand order. Pp. 235–236.
(e) Petitioner’s contention that Congress did not intend § 1447(d) to
govern suits removed under the FSIA is flatly refuted by this Court’s
longstanding precedent that “[a]bsent a clear statutory command to the
contrary, [the Court] assume[s] that Congress is ‘aware of the universal
ity of th[e] practice’ of denying appellate review of remand orders when
Congress creates a new ground for removal.” Things Remembered,
Inc. v. Petrarca, 516 U. S. 124, 128. Pp. 236–238.
391 F. 3d 1011, vacated in part and remanded.

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226 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Opinion of the Court
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined.
Kennedy, J., filed a concurring opinion, in which Alito, J., joined, post,
p. 239. Breyer, J., filed a dissenting opinion, in which Stevens, J.,
joined, post, p. 239.
David C. Frederick argued the cause for petitioner. With
him on the briefs was Scott H. Angstreich.
Douglas H. Hallward-Driemeier argued the cause for the
United States as amicus curiae urging reversal. With him
on the brief were Solicitor General Clement, Assistant At
torney General Keisler, Deputy Solicitor General Kneedler,
Mark B. Stern, and H. Thomas Byron III.
Leonard B. Simon argued the cause for respondents.
With him on the brief were Pamela M. Parker and Wil
liam Bernstein.*
Justice Scalia delivered the opinion of the Court.
We granted certiorari to decide whether, under the For
eign Sovereign Immunities Act of 1976 (FSIA), petitioner is
an “organ of a foreign state or political subdivision thereof.”
28 U. S. C. § 1603(b)(2). When we granted certiorari, how
ever, we asked the parties also to address whether the Ninth
Circuit had appellate jurisdiction in light of 28 U. S. C.
§ 1447(d).
I
The procedural history of this case is long and complicated;
we recount only what is necessary to resolve the writ before
us. The State of California, along with some private and
corporate citizens (hereinafter collectively referred to as
plaintiffs-respondents), filed suits in California state courts
against various companies in the California energy market,
*Briefs of amici curiae urging reversal were filed for the Government
of Canada by Margaret K. Pfeiffer; and for the Province of British Colum
bia by Roy T. Englert, Jr., and Matthew R. Segal.
A brief of amici curiae was filed for Arthur R. Miller et al. by Brian
Wolfman and Mr. Miller, pro se.

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alleging that they had conspired to fix prices in violation
of California law. Some of those defendants, in turn, filed
cross-claims seeking indemnity from, inter alios, the Bonne
ville Power Administration (BPA), the Western Area Power
Administration (WAPA), the British Columbia Hydro and
Power Authority (BC Hydro), and petitioner Powerex. (We
shall sometimes refer to these entities collectively as the
cross-defendants.) BPA and WAPA are agencies of the
United States Government. BC Hydro is a crown corpora
tion of the Canadian Province of British Columbia that is
wholly owned by the Province and that all parties agree con
stitutes a “foreign state” for purposes of the FSIA. See
§ 1603. Petitioner, also a Canadian corporation, is a wholly
owned subsidiary of BC Hydro.
The cross-defendants removed the entire case to federal
court. BC Hydro and petitioner both relied on § 1441(d),
which permits a “foreign state,” as defined by the FSIA, see
§ 1603(a), to remove civil actions brought against it in state
court. BPA and WAPA invoked § 1442(a), authorizing re
moval by federal agencies. Plaintiffs-respondents moved to
remand, arguing that petitioner was not a foreign state, and
that the cross-claims against BPA, WAPA, and BC Hydro
were barred by sovereign immunity. Petitioner opposed re
mand on the ground that it was a foreign state under the
FSIA; the other cross-defendants opposed remand on the
ground that their sovereign immunity entitled them to be
dismissed from the action outright.
The District Court initially concluded (we assume cor
rectly) that § 1442(a) entitled BPA and WAPA to remove the
entire case and that BC Hydro was similarly entitled under
§ 1441(d). App. to Pet. for Cert. 20a. It thus believed that
whether the case should be remanded “hinge[d on its] juris
dictional authority to hear the removed claims, not whether
the actions were properly removed in the first instance.”
Ibid. The District Court held that petitioner did not qualify
as a foreign sovereign under the FSIA. Id., at 33a–38a. It

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also decided that BC Hydro enjoyed sovereign immunity
under the FSIA. Id., at 21a–33a. And it concluded that
BPA and WAPA were immune from suit in state court, which
the court believed deprived it of jurisdiction over the claims
against those agencies. Id., at 38a–44a. Having reached
these conclusions, the District Court remanded the entire
case. Id., at 44a.
Petitioner appealed to the Court of Appeals for the Ninth
Circuit, arguing that it was a foreign sovereign under the
FSIA. BPA and WAPA (but not BC Hydro) also appealed,
asserting that the District Court, before remanding the
case, should have dismissed them from the action in light of
their sovereign immunity. Plaintiffs-respondents, for their
part, rejoined that both appeals were jurisdictionally barred
by § 1447(d) and that the District Court had not erred in
any event. The Ninth Circuit rejected the invocation of
§ 1447(d), holding that that provision did not preclude it from
reviewing substantive issues of law that preceded the re
mand order. California v. NRG Energy Inc., 391 F. 3d
1011, 1022–1023 (2004). It also found that the District Court
had jurisdiction over the case because BPA, WAPA, and BC
Hydro properly removed the entire action. Id., at 1023.
Turning to the merits, the Ninth Circuit affirmed the holding
that petitioner was not a “foreign state” for purposes of
the FSIA. Id., at 1025–1026. It also upheld the District
Court’s conclusion that BPA, WAPA, and BC Hydro retained
sovereign immunity, id., at 1023–1025, but reversed its deci
sion not to dismiss BPA and WAPA before remanding, id.,
at 1026–1027.
Petitioner sought certiorari review of the Ninth Circuit’s
determination that it was not an “organ of a foreign state
or political subdivision thereof ” under § 1603(b)(2). We
granted certiorari on this question, but asked the parties to
address in addition whether the Ninth Circuit had jurisdic
tion over petitioner’s appeal notwithstanding § 1447(d). 549
U. S. 1178 (2007).

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II
The authority of appellate courts to review district-court
orders remanding removed cases to state court is substan
tially limited by statute. Title 28 U. S. C. § 1447(d) provides
(with an exception for certain civil rights cases) that “[a]n
order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise.” Deter
mining whether the Ninth Circuit was permitted to review
the District Court’s remand is, alas, not as easy as one would
expect from a mere reading of this text, for we have inter
preted § 1447(d) to cover less than its words alone suggest.
In Thermtron Products, Inc. v. Hermansdorfer, 423 U. S.
336, 345–346 (1976), we held that § 1447(d) should be read in
pari materia with § 1447(c), so that only remands based on
the grounds specified in the latter are shielded by the bar on
review mandated by the former. At the time of Thermtron,
§ 1447(c) stated in relevant part:
“ ‘If at any time before final judgment it appears that
the case was removed improvidently and without juris
diction, the district court shall remand the case.’ ” Id.,
at 342.
Consequently, Thermtron limited § 1447(d)’s application to
such remands. Id., at 346. In 1988, Congress amended
§ 1447(c) in relevant part as follows:
“A motion to remand the case on the basis of any defect
in removal procedure must be made within 30 days after
the filing of the notice of removal under [28 U. S. C.
§] 1446(a). If at any time before final judgment it ap
pears that the district court lacks subject matter juris
diction, the case shall be remanded.” § 1016(c)(1), 102
Stat. 4670.
When that version of § 1447(c) was in effect, we thus inter
preted § 1447(d) to preclude review only of remands for lack
of subject-matter jurisdiction and for defects in removal pro

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cedure. See Quackenbush v. Allstate Ins. Co., 517 U. S. 706,
711–712 (1996); Things Remembered, Inc. v. Petrarca, 516
U. S. 124, 127–128 (1995).
Although § 1447(c) was amended yet again in 1996, 110
Stat. 3022, we will assume for purposes of this case that
the amendment was immaterial to Thermtron’s gloss on
§ 1447(d), so that the prohibition on appellate review remains
limited to remands based on the grounds specified in Quack
enbush. We agree with petitioner that the remand order
was not based on a defect in removal procedure, so on the
foregoing interpretation of Thermtron the remand is immu
nized from review only if it was based on a lack of subject
matter jurisdiction.
A
The principal submission of the Solicitor General and peti
tioner is that the District Court’s remand order was not
based on a lack of “subject matter jurisdiction” within the
meaning of § 1447(c) because that term is properly inter
preted to cover only “a defect in subject matter jurisdiction
at the time of removal that rendered the removal itself juris
dictionally improper.” Brief for United States as Amicus
Curiae 8; see also id., at 8–11; Brief for Petitioner 42–45.
Under this interpretation, the District Court’s remand order
was not based on a defect in subject-matter jurisdiction for
purposes of § 1447(c), since the cross-defendants other than
petitioner were statutorily authorized to remove the whole
case in light of their sovereign status. The Ninth Circuit
appears to have relied, at least in part, on this rationale.
See 391 F. 3d, at 1023.
We reject this narrowing construction of § 1447(c)’s un
qualified authorization of remands for lack of “subject matter
jurisdiction.” Nothing in the text of § 1447(c) supports the
proposition that a remand for lack of subject-matter jurisdic
tion is not covered so long as the case was properly removed
in the first instance. Petitioner and the Solicitor General
do not seriously dispute the absence of an explicit textual

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limitation. Instead, relying on the statutory history of
§ 1447(c), they make a three-step argument why the provi
sion is implicitly limited in this manner. First, they note
that the pre-1988 version of § 1447(c) mandated remand “[i]f
at any time before final judgment it appear[ed] that the case
was removed improvidently and without jurisdiction,” 28
U. S. C. § 1447(c) (1982 ed.). That version, obviously, author
ized remand only for cases that were removed improperly.
Second, they contend that the purpose of the 1988 amend
ment was to impose a time limit for raising nonjurisdictional
objections to removal, a contention that is certainly plausible
in light of the structure of the amended provision:
“A motion to remand the case on the basis of any defect
in removal procedure must be made within 30 days after
the filing of the notice of removal under section 1446(a).
If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case
shall be remanded.” § 1447(c) (1988 ed.).
Finally, they conclude that since the purpose of the amend
ment was to alter the timing rules, there is no reason to
think that Congress broadened the scope of § 1447(c) to au
thorize the remand of cases that had been properly removed.
The language “lacks subject matter jurisdiction,” which was
newly added to § 1447(c), must be construed to cover only
cases in which removal was jurisdictionally improper at the
outset.
But the very statutory history upon which this creative
argument relies conclusively refutes it. The same section of
the public law that amended § 1447(c) to include the phrase
“subject matter jurisdiction” also created a new § 1447(e).
See § 1016(c), 102 Stat. 4670. Section 1447(e), which remains
on the books, states:
“If after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter

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jurisdiction, the court may deny joinder, or permit join
der and remand the action to the State court.”
This unambiguously demonstrates that a case can be prop
erly removed and yet suffer from a failing in subject-matter
jurisdiction that requires remand. A standard principle of
statutory construction provides that identical words and
phrases within the same statute should normally be given
the same meaning. See, e. g., IBP, Inc. v. Alvarez, 546 U. S.
21, 34 (2005). That maxim is doubly appropriate here, since
the phrase “subject matter jurisdiction” was inserted into
§ 1447(c) and § 1447(e) at the same time. There is no reason
to believe that the new language in the former provision,
unlike the new language simultaneously inserted two subsec
tions later, covers only cases in which removal itself was
jurisdictionally improper. We hold that when a district
court remands a properly removed case because it nonethe
less lacks subject-matter jurisdiction, the remand is covered
by § 1447(c) and thus shielded from review by § 1447(d).1
B
That holding requires us to determine whether the ground
for the District Court’s remand in the present case was lack
of subject-matter jurisdiction. As an initial matter, it is
quite clear that the District Court was purporting to remand
on that ground. The heading of the discussion section of the
remand order is entitled “Subject Matter Jurisdiction Over
the Removed Actions.” App. to Pet. for Cert. 20a. And
1 To be clear, we do not suggest that the question whether removal is
proper is always different from the question whether the district court
has subject-matter jurisdiction, for the two are often identical in light of
the general rule that postremoval events do not deprive federal courts of
subject-matter jurisdiction. See, e. g., Wisconsin Dept. of Corrections v.
Schacht, 524 U. S. 381, 391 (1998). We merely hold that when there is a
divergence, such that a district court lacks subject-matter jurisdiction to
hear a claim that was properly removed, the consequent remand is author
ized by § 1447(c) and appellate review is barred by § 1447(d).

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the District Court explicitly stated that the remand “issue
hinges . . . on the Court’s jurisdictional authority to hear
the removed claims.” Ibid. Were any doubt remaining, it
is surely eliminated by the District Court’s order denying
a stay of the remand, which repeatedly stated that a lack
of subject-matter jurisdiction required remand pursuant to
§ 1447(c). See App. 281–286.
For some Members of this Court, the foregoing conclusion
that the District Court purported to remand for lack of
subject-matter jurisdiction is alone enough to bar review
under § 1447(d). See Osborn v. Haley, 549 U. S. 225, 264
(2007) (Scalia, J., joined by Thomas, J., dissenting). Even
assuming, however, that § 1447(d) permits appellate courts to
look behind the district court’s characterization, see Kircher
v. Putnam Funds Trust, 547 U. S. 633, 641, n. 9 (2006) (re
serving the question), we conclude that appellate review is
barred in this case.2 There is only one plausible explanation
of what legal ground the District Court actually relied upon
for its remand in the present case. As contended by
plaintiffs-respondents, it was the court’s lack of power to ad
judicate the claims against petitioner once it concluded both
that petitioner was not a foreign state capable of independ
ently removing and that the claims against the other remov
ing cross-defendants were barred by sovereign immunity.
Brief for Plaintiffs-Respondents 17–21, 25–26. Though we
have not passed on the question whether, when sovereign
immunity bars the claims against the only parties capable
of removing the case, subject-matter jurisdiction exists to
entertain the remaining claims, cf. n. 3, infra, the point is
2 The Court’s opinion in Osborn v. Haley, 549 U. S. 225 (2007), had noth
ing to say about the scope of review that is permissible under § 1447(d),
since it held that § 1447(d) was displaced in its entirety by 28 U. S. C.
§ 2679(d)(2). See 549 U. S., at 243–244 (reasoning that, of the two forum
determining provisions—§ 1447(d), the generally applicable section, and
§ 2679(d)(2), a special prescription governing Westfall Act cases—“only one
can prevail”).

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certainly debatable. And we conclude that review of the
District Court’s characterization of its remand as resting
upon lack of subject-matter jurisdiction, to the extent it is
permissible at all, should be limited to confirming that that
characterization was colorable. Lengthy appellate disputes
about whether an arguable jurisdictional ground invoked by
the district court was properly such would frustrate the
purpose of § 1447(d) quite as much as determining whether
the factfinding underlying that invocation was correct. See
Kircher, supra, at 649–650 (Scalia, J., concurring in part
and concurring in judgment). Moreover, the line between
misclassifying a ground as subject-matter jurisdiction and
misapplying a proper ground of subject-matter jurisdiction
is sometimes elusively thin. To decide the present case, we
need not pass on whether § 1447(d) permits appellate review
of a district-court remand order that dresses in jurisdictional
clothing a patently nonjurisdictional ground (such as the
docket congestion invoked by the District Court in Therm
tron, 423 U. S., at 344). We hold that when, as here, the
District Court relied upon a ground that is colorably charac
terized as subject-matter jurisdiction, appellate review is
barred by § 1447(d).
Petitioner puts forward another explanation for the re
mand, which we find implausible. Petitioner claims that, be
cause the entire case was properly removed, the District
Court had the discretion to invoke a form of supplemental
jurisdiction to hear the claims against it, and that its remand
rested upon the decision not to exercise that discretion. In
short, petitioner contends that the District Court was actu
ally relying on Carnegie-Mellon Univ. v. Cohill, 484 U. S.
343, 357 (1988), which authorized district courts to remand
removed state claims when they decide not to exercise sup
plemental jurisdiction. Brief for Petitioner 45–48; Reply
Brief for Petitioner 16–20. It is far from clear, to begin
with, (1) that supplemental jurisdiction was even available

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in the circumstances of this case; 3 and (2) that when discre
tionary supplemental jurisdiction is declined the remand is
not based on lack of subject-matter jurisdiction for purposes
of § 1447(c) and § 1447(d).4 Assuming those points, however,
there is no reason to believe that the District Court’s remand
was actually based on this unexplained discretionary deci
sion. The District Court itself never mentioned the possi
bility of supplemental jurisdiction, neither in its original de
cision, see App. to Pet. for Cert. 20a–44a, nor in its order
denying petitioner’s motion to stay the remand pending ap
peal, App. 281–286. To the contrary, as described above, it
relied upon lack of subject-matter jurisdiction—which, in
petitioner’s view of things (but see n. 4, this page) would not
include a Cohill remand. Moreover, it does not appear from
the record that petitioner ever even argued to the District
Court that supplemental jurisdiction was a basis for retain
ing the claims against it. There is, in short, no reason to
believe that an unmentioned nonexercise of Cohill discretion
was the basis for the remand.
C
Part of the reason why the Ninth Circuit concluded it had
appellate jurisdiction is a legal theory quite different from
those discussed and rejected above. Petitioner, along with
the other appellants, convinced the court to apply Circuit
precedent holding that § 1447(d) does not preclude review of
a district court’s merits determinations that precede the re
3 Petitioner provides no authority from this Court supporting the propo
sition that a district court presiding over a multiparty removed case can
invoke supplemental jurisdiction to hear claims against a party that cannot
independently remove when the claims against the only parties authorized
to remove are barred by sovereign immunity.
4 We have never passed on whether Cohill remands are subject-matter
jurisdictional for purposes of post-1988 versions of § 1447(c) and § 1447(d).
See Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 129–130 (1995)
(Kennedy, J., concurring) (noting that the question is open); cf. Cohill, 484
U. S., at 355, n. 11 (discussing the pre-1988 version of § 1447(c)).

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mand. See 391 F. 3d, at 1023 (citing, inter alia, Pelleport
Investors, Inc. v. Budco Quality Theatres, Inc., 741 F. 2d
273, 276–277 (CA9 1984)). Petitioner has not completely
abandoned this argument before us, see Brief for Petitioner
50, and it is in any event desirable to address this aspect of
the Ninth Circuit’s judgment.
The line of Ninth Circuit jurisprudence upon which peti
tioner relied appears to be invoking our decision in Waco v.
United States Fidelity & Guaranty Co., 293 U. S. 140 (1934).
There the District Court, in a single decree, had entered one
order dismissing a cross-complaint against one party, and an
other order remanding because there was no diversity of citi
zenship in light of the dismissal. Id., at 142. We held that
appellate jurisdiction existed to review the order of dis
missal, although we repeatedly cautioned that the remand
order itself could not be set aside. Id., at 143–144. The
Ninth Circuit’s application of Waco to petitioner’s appeal was
mistaken. As we reiterated in Kircher, see 547 U. S., at
645–646, n. 13, Waco does not permit an appeal when there
is no order separate from the unreviewable remand order.
Here petitioner can point to no District Court order, sepa
rate from the remand, to which it objects and to which the
issue of its foreign sovereign status is material. Thus, peti
tioner’s invocation of Waco amounts to a request for one of
two impermissible outcomes: an advisory opinion as to its
FSIA status that will not affect any order of the District
Court, or a reversal of the remand order. Waco did not, and
could not, authorize either form of judicial relief.
D
Finally, petitioner contends, with no textual support, that
§ 1447(d) is simply inapplicable to a suit removed under the
FSIA. It asserts that Ҥ 1447(d) must yield because Con
gress could not have intended to grant district judges ir
revocable authority to decide questions with such sensitive
foreign-relations implications.” Brief for Petitioner 49.

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We will not ignore a clear jurisdictional statute in reliance
upon supposition of what Congress really wanted. See Con
necticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992).
Petitioner’s divination of congressional intent is flatly re
futed by longstanding precedent:
“Section 1447(d) applies ‘not only to remand orders made
in suits removed under [the general removal statute],
but to orders of remand made in cases removed under
any other statutes, as well.’ . . . Absent a clear statutory
command to the contrary, we assume that Congress is
‘aware of the universality of th[e] practice’ of denying
appellate review of remand orders when Congress cre
ates a new ground for removal.” Things Remembered,
516 U. S., at 128 (quoting United States v. Rice, 327 U. S.
742, 752 (1946); emphasis deleted and alterations in
original).
Congress has repeatedly demonstrated its readiness to
exempt particular classes of remand orders from § 1447(d)
when it wishes—both within the text of § 1447(d) itself
(which exempts civil rights cases removed pursuant to 28
U. S. C. § 1443), and in separate statutes, see, e. g., 12 U. S. C.
§ 1441a(l)(3)(C), § 1819(b)(2)(C); 25 U. S. C. § 487(d).
We are well aware that § 1447(d)’s immunization of errone
ous remands has undesirable consequences in the FSIA con
text. A foreign sovereign defendant whose case is wrongly
remanded is denied not only the federal forum to which it
is entitled (as befalls all remanded parties with meritorious
appeals barred by § 1447(d)), but also certain procedural
rights that the FSIA specifically provides foreign sovereigns
only in federal court (such as the right to a bench trial, see
28 U. S. C. § 1330(a); § 1441(d)). But whether that special
concern outweighs § 1447(d)’s general interest in avoiding
prolonged litigation on threshold nonmerits questions, see
Kircher, supra, at 640, is a policy debate that belongs in the
halls of Congress, not in the hearing room of this Court. As

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238 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Opinion of the Court
far as the Third Branch is concerned, what the text of
§ 1447(d) indisputably does prevails over what it ought to
have done.5
* * *
Section 1447(d) reflects Congress’s longstanding “policy of
not permitting interruption of the litigation of the merits of
a removed case by prolonged litigation of questions of juris
diction of the district court to which the cause is removed.”
Rice, supra, at 751. Appellate courts must take that juris
dictional prescription seriously, however pressing the merits
5 The dissent’s belief that there is an implicit FSIA exception to
§ 1447(d), see post, at 239–244 (opinion of Breyer, J.), rests almost exclu
sively on our recent decision in Osborn. The dissent reads Osborn to
stand for the proposition that any “conflict” between a specific, later
enacted statute and § 1447(d) should be resolved in favor of the former.
Post, at 240–241. The reason why the dissent is forced to the parentheti
cal admission that “Osborn did not say as much,” post, at 240, is because
the dissent drastically overreads the case. Osborn held only that § 1447(d)
was trumped by the Westfall Act’s explicit provision that removal was
conclusive upon the Attorney General’s certification: As between “the two
antishuttling commands,” the Court said, “only one can prevail.” 549
U. S., at 244. The opinion was quite clear that the only statutory rivalry
with which it was concerned was dueling “antishuttling commands”: “Only
in the extraordinary case in which Congress has ordered the intercourt
shuttle to travel just one way—from state to federal court—does today’s
decision hold sway.” Ibid. That is why Osborn repeatedly emphasized
that Westfall Act certification is “ ‘conclusiv[e] . . . for purposes of re
moval,’ ” id., at 242, 243, an emphasis that the dissent essentially ignores,
post, at 240–241.
Osborn is no license for courts to assume the legislative role by charac
terizing the consequences of § 1447(d)’s bar on appellate review as creating
a conflict, leaving it to judges to suppress that provision when they think
Congress undervalued or overlooked those consequences. The dissent
renders a quintessential policy judgment in concluding that appellate
“delay is necessary, indeed, crucial,” post, at 242, when the rights of a
foreign sovereign are at stake. We have no idea whether this is a wise
balancing of the various values at issue here. We are confident, however,
that the dissent is wrong to think that it would improve the “law in this
democracy,” post, at 244, for judges to accept the lawmaking power that
the dissent dangles before them.

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Breyer, J., dissenting
of the appeal might seem. We hold that § 1447(d) bars appel
late consideration of petitioner’s claim that it is a foreign
state for purposes of the FSIA. We therefore vacate in part
the judgment of the Ninth Circuit and remand the case
with instructions to dismiss petitioner’s appeal for want of
jurisdiction.
It is so ordered.
Justice Kennedy, with whom Justice Alito joins,
concurring.
When Congress acted through the Foreign Sovereign Im
munities Act of 1976, 28 U. S. C. § 1602 et seq. (2000 ed. and
Supp. IV), to codify certain protections and immunities for
foreign sovereigns and the entities of those sovereigns, it no
doubt considered its action to be of importance for maintain
ing a proper relationship with other nations. And so it is
troubling to be required to issue a decision that might well
frustrate a policy of importance to our own Government.
As the Court explains, however, the structure and wording
of § 1447(d) (2000 ed.) leave us no other choice. There is no
latitude for us to reach a different result. If it is true that
the statute as written and the judgment we issue today are
inconsistent with the intent and purpose Congress wanted to
express, then the immediate jeopardy that foreign sovereign
entities will now face should justify urgent legislative action
to enact the necessary statutory revisions.
Justice Breyer, with whom Justice Stevens, joins,
dissenting.
Unlike the Court, I believe the District Court’s remand
order is reviewable on appeal. And, reviewing the decision
below, I would hold that Powerex is an organ of the Govern
ment of British Columbia.
I
The majority concludes that 28 U. S. C. § 1447(d) took from
the Ninth Circuit the power to review the District Court’s

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remand decision. The statutory argument is a strong one.
Section 1447(c) says that, “[i]f at any time before final judg
ment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded” to state court; and
§ 1447(d), referring to subsection (c), adds that a district
court “order remanding a case to the State court from which
it was removed is not reviewable on appeal or otherwise.”
Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336,
345–346 (1976).
Nonetheless this Court has found exceptions to § 1447’s
seemingly blanket prohibition. See, e. g., id., at 350–352;
Osborn v. Haley, 549 U. S. 225, 240–244 (2007). In doing so,
the Court has recognized that even a statute silent on the
subject can create an important conflict with § 1447(d)’s “no
appellate review” instruction. And where that is so, we
have, in fact, resolved the conflict by reading a later more
specific statute as creating an implicit exception to § 1447(d)
(though Osborn did not say as much). Id., at 243–244.
The subject matter of the Foreign Sovereign Immunity
Act of 1976’s (FSIA) removal provision, foreign sovereigns,
is special. And the FSIA creates serious conflicts with
§ 1447(d)’s “no appellate review” instruction. The FSIA is
later enacted and subject-matter specific. Consequently,
I would read into the FSIA a similar exception to § 1447(d),
applicable here.
Osborn i llustrates my starting point: a conflict with
§ 1447(d). The Westfall Act, the specific statute at issue in
that case, provides for removal to federal court of a state
court lawsuit brought against a federal employee where the
state-court lawsuit attacks employee actions within the
scope of federal employment. 28 U. S. C. §§ 2679(d)(2)–(3).
The Westfall Act authorizes the Attorney General to certify
that the employee’s actions at issue fall within the scope of
federal employment. And the Westfall Act says that the
certification “conclusively establish[es]” that fact for removal
purposes. §§ 2679(d)(1)–(2). In Osborn, we pointed out

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Breyer, J., dissenting
that § 1447(d) would permit a district court, without appel
late review, to remand in the face of a contrary Attorney
General certification. 549 U. S., at 242. Doing so, without
appellate review, would thereby permit the district court to
substitute its own judgment (as to whether the employee’s
actions were within the federal “scope of employment”) for
that of the Attorney General. And the district court would
thereby have the unreviewable power to make the Attorney
General’s determination non-conclusive, contrary to what
the statute says. Because § 1447(d), if applied, would render
this statutory instruction “weightless,” we found a conflict
with § 1447(d). Ibid. And we resolved the conflict in favor
of the later enacted, more specific Westfall Act. Id., at 243.
A similarly strong conflict exists here, albeit not with a
separate removal provision, but rather with a comprehensive
statutory scheme. To understand how that is so, imagine a
case not now before us. Imagine that a private plaintiff
brings a lawsuit in state court against a noncommercial divi
sion of a foreign nation’s government, say, a branch of that
nation’s defense ministry or, for that matter, against the for
eign nation itself. The FSIA provides a specific guarantee
that such a suit cannot continue (except in certain instances
that, for purposes of my example, are not relevant). 28
U. S. C. §§ 1602–1605. It achieves this objective by author
izing the foreign government to remove the case to federal
court where a federal judge will determine if the defendant
is indeed a foreign government and, if so, dismiss the case.
§ 1441(d).
What happens if the foreign sovereign removes the case
to federal court only to have the federal judge mistakenly
remand the case to state court? As in an ordinary case, the
lawsuit may well continue in the state tribunal. But, if so,
unlike the ordinary case (say, a wrongly remanded diversity
or “arising under” case) but like Osborn, the removing party
will have lost considerably more than a choice of forum.
The removing party will have lost that which a different

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242 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
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portion of the special statute sought to provide, namely, the
immunity from suit that the FSIA sought to ensure.
That assurance forms a separate and central FSIA objec
tive. The very purpose of sovereign immunity is to avoid
subjecting a foreign sovereign to the rigors and “inconven
ience of suit.” Dole Food Co. v. Patrickson, 538 U. S. 468,
479 (2003). In such a case, a state court likely will feel
bound by the federal court’s prior judgment on the lack of
immunity (under state law-of-the-case doctrine) and this
Court’s review (of an adverse state-court judgment) will
come too late. In such a case, the FSIA’s basic objective
(unrelated to choice of forum) will have become “weightless.”
Osborn, supra, at 242.
It is difficult to see how this conflict between the FSIA’s
basic objective and § 1447(d) is any less serious than the con
flict at issue in Osborn. The statutory objective here, har
monious relations with foreign sovereigns, is more, not less,
important. See Ex parte Peru, 318 U. S. 578, 587 (1943) (ex
ercising original writ to protect sovereign from erroneous
District Court conclusion that it was not immune from suit).
See also, e. g., Republic of Mexico v. Hoffman, 324 U. S. 30,
35 (1945); Schooner Exchange v. McFaddon, 7 Cranch 116
(1812); H. R. Rep. No. 94–1487, p. 13 (1976) (hereinafter H. R.
Rep.) (FSIA intended to avoid “adverse foreign relations
consequences”).
Neither is a § 1447(d) exception here likely to undermine
§ 1447(d)’s basic purpose: avoiding the procedural delay that
an added federal appeal would create. Avoiding that delay
is important in a typical case where only choice of forum is
at issue. But that same delay is necessary, indeed, crucial,
in the special case where a foreign sovereign’s immunity
from suit is at issue. At the same time, foreign affairs is
itself an exceptional topic, with special risks, special exper
tise, and special federal authority; hence, our finding a
§ 1447(d) exception in the FSIA is unlikely to lead courts to
create a series of exceptions affecting more typical cases.

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Breyer, J., dissenting
See, e. g., Kircher v. Putnam Funds Trust, 547 U. S. 633,
640–641 (2006) (avoidance of delay is § 1447(d)’s basic
purpose).
Finally, as in Osborn, the FSIA is a specific, later enacted
statute. Cf. 549 U. S., at 243; see generally Long Island
Care at Home, Ltd. v. Coke, ante, at 170 (where statutory
provisions are inconsistent, “normally the specific governs
the general”); Morales v. Trans World Airlines, Inc., 504
U. S. 374, 384–385 (1992); Simpson v. United States, 435 U. S.
6, 15 (1978).
Taken together, these considerations lead me to believe
that, were a foreign non-commercial government entity’s im
munity from suit at issue, the FSIA would conflict with
§ 1447(d), leading a court properly to read the FSIA as im
plicitly creating an exception to § 1447(d), and thereby pro
tecting the sovereign’s right to appeal a wrongful remand
order.
The removing defendant in this case, of course, is not a
foreign sovereign immune from suit. It is a foreign govern
mental entity that acts in a commercial capacity and conse
quently is subject to suit. 28 U. S. C. § 1605(a)(2). But the
FSIA nonetheless creates an important, though different,
conflict. That conflict arises because a different FSIA pro
vision says, “[u]pon removal the action shall be tried by
the court without jury.” § 1441(d) (emphasis added); see
H. R. Rep., at 33 (“[O]ne effect of removing an action under
the new section 1441(d) will be to extinguish a demand for a
jury trial made in the state court”); S. Rep. No. 94–1310, p. 32
(1976) (hereinafter S. Rep.) (same). A wrongful remand
would destroy this statutory right. The state-court trial
would often proceed with a jury; and it is questionable
whether even this Court could later set aside an adverse
state-court judgment for that reason—at least Congress
seems to have thought as much. See H. R. Rep., at 33 (“Be
cause the judicial power of the United States specifically en
compasses actions between a State, or the Citizens thereof,

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244 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Breyer, J., dissenting
and foreign States, this preemption of State court [jury trial]
procedures in cases involving foreign sovereigns is clearly
constitutional” (emphasis added; citations and internal quota
tion marks omitted)); S. Rep., at 32 (same).
The conflict is important, this case is special, and we
should resolve it by reading the FSIA as implicitly pre
empting the general application of § 1447(d). Indeed, I do
not see how we could read the FSIA differently in this re
spect depending upon whether commercial or noncommercial
sovereign activity is at issue. For these reasons, I believe
that the Ninth Circuit correctly determined that it possessed
legal authority to review the case.
It is true, as the majority states, that Congress has in
other contexts carved out certain removal orders as being
specifically reviewable on appeal. Ante, at 237. The ma
jority reads these specific statutes to suggest that had Con
gress intended § 1447(d) not to apply in FSIA cases, it could
simply have said so. Ibid. However, in fact, for the rea
sons articulated above, I believe that Congress must have
assumed the FSIA overrode § 1447. Congress enacted the
FSIA soon after the Court’s decision in Thermtron Prod
ucts, 423 U. S., at 345, held that implicit § 1447(d) exceptions
might exist. Cf. Osborn, 549 U. S., at 241–243 (despite statu
tory silence, reading Westfall Act as overriding § 1447(d)).
And, as I have said, the FSIA 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 238, n. 5, with
increased fidelity to the intention of those to whom our Con
stitution delegates that lawmaking power, namely, the Con
gress of the United States. And, law in this democracy
would be all the better for it.

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Breyer, J., dissenting
II
I part company with the Ninth Circuit on the merits. The
Circuit held that the District Court’s remand was proper be
cause, in its view, Powerex is not “an organ of a . . . political
subdivision” of a “foreign state.” 28 U. S. C. § 1603(b)(2)
(emphasis added). Hence, it is not an “agency or instrumen
tality” of a foreign government and falls outside the scope
of the FSIA’s provision authorizing removal. § 1603(a); see
generally California v. NRG Energy Inc., 391 F. 3d 1011,
1025–1026 (2004).
In my view, however, Powerex is “an organ” of the Prov
ince of British Columbia, a “political subdivision” of Canada.
The record makes clear that Powerex is a government
owned and government-operated electric power distribution
company, not meaningfully different from ordinary municipal
electricity distributors, the Tennessee Valley Authority, or
any foreign “nationalized” power producers and distributors,
such as Britain’s former Central Electricity Generating
Board or Electricite´ de France. See generally C. Harris,
Electricity Markets: Pricing, Structures, and Economics
15–20 (2006) (summarizing features of electricity companies
in United States and Europe, among others); J. Nelson, Mar
ginal Cost Pricing in Practice 3–6, 32, 37 (1964) (summarizing
features of France hydropower industry). See also http://
tva.com/abouttva/index.htm (summarizing general features
of Tennessee Valley Authority) (all Internet materials as vis
ited June 8, 2007, and available in Clerk of Court’s case file);
Government Corporation Control Act, § 101, 59 Stat. 597–598
(describing Tennessee Valley Authority as “ ‘wholly owned
Government corporation’ ”); Lebron v. National Railroad
Passenger Corporation, 513 U. S. 374, 388–389 (1995) (noting
that corporate entities in Government Corporation Control
Act were incorporated by other government-owned corpora
tions); Dept. of Labor, Bureau of Labor Statistics, Career
Guide to Industries, Utilities, online at http://www.bls.gov/
oco/cg/cgs018.htm (describing features of public run utilities);

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246 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
Breyer, J., dissenting
G. Rothwell & T. Go´ mez, Electricity Economics: Regula
tion and Deregulation 129–241 (2003) (comparing electricity
markets and industries in California and various foreign
nations).
Powerex is itself owned and operated by BC Hydro, an
entity that all apparently concede is governmental in nature.
Brief for Plaintiffs-Respondents 38–40, 42. British Colum
bia’s statutes create BC Hydro as a kind of government
agency to produce water-generated electric power. Power
Measures Act, S. B. C., ch. 40 (1964); App. to Pet. for Cert.
52a, 118a, 163a–169a. BC Hydro has a board of directors,
all of whom are appointed by British Columbia’s government.
Id., at 58a–59a. It is an “agent of the [provincial] govern
ment and its powers may be exercised only as an agent of
the government.” Hydro Power Authority Act, R. S. B. C.,
ch. 212, § 3(1) (1996). The District Court concluded that BC
Hydro is, in fact, a foreign sovereign entity entitled to immu
nity. 391 F. 3d, at 1024.
British Columbia’s Minister of Energy issued a written
directive ordering that BC Hydro create a subsidiary, Pow
erex, to carry out the specialized tasks of exporting hydro
generated electric power and of importing power, which it is
then to distribute to British Columbia residents. App. 235–
239, 250–251, 267. Powerex specifically carries out these ob
ligations in accordance with various treaties between Canada
and the United States. Id., at 133–155; App. to Pet. for Cert.
55a; see Treaty Between the United States of America and
Canada Relating to Cooperative Development of the Water
Resources of the Columbia River Basin, Jan. 17, 1961, [1964]
15 U. S. T. 1555, T. I. A. S. No. 5638, App. to Pet. for Cert.
61a–82a; Treaty Between Canada and the United States of
America Relating to the Skagit River and Ross Lake, and
the Seven Mile Reservoir on the Pend d’Oreille River, Apr.
2, 1984, 1469 U. N. T. S. 309, T. I. A. S. No. 11088, App. to

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Breyer, J., dissenting
Pet. for Cert. 138a–145a; British Columbia-Seattle Agree
ment (Mar. 30, 1984), App. 160–171.
Powerex’s board members consist of some of BC Hydro’s
board members and other members whom those members
appoint. App. 233–235. The government’s comptroller
general reviews Powerex’s financial operations and regulates
the terms under which it conducts business. Financial Ad
ministration Act, R. S. B. C., ch. 138, §§ 4.1, 8(2)(c)(i), 75, 79.3
(1996) (FAA), Addendum to Brief for Petitioner 34–36, 40–42
(hereinafter Addendum). British Columbia’s fiscal control
statute refers to Powerex as a “ ‘government body.’ ” FAA
§ 1, Addendum 31, 33. And other British Columbia laws
refer to its employees as “ ‘public office holders.’ ” Lobby
ists Registration Act, S. B. C., ch. 42, § 1 (2001), Addendum
50. Powerex pays no income taxes. See Income Tax
Amendments Act, 1997, S. C. 1998, ch. 19, §178 (to be codified
at R. S. C., ch. 1, §§ 149(1)(d), (d.2), Addendum 45; App. to
Pet. for Cert. 58a; Brief for Petitioner 31. The British Co
lumbian government, through BC Hydro, has sole beneficial
ownership and control of Powerex. App. 267. If Powerex
earns a profit, that profit must be rebated directly or indi
rectly to British Columbia’s residents. Id., at 215, 238.
I can find no significant difference between Powerex and the
classical government entities to which I previously referred.
Supra, at 245.
The Ninth Circuit noted that Powerex may earn a profit
and that the government of British Columbia does not pro
vide financial support. And the Ninth Circuit thought these
facts made a critical difference. But a well-run nationalized
firm should make a reasonable profit; nor should it have
to borrow from the government itself. See, e. g., Nelson,
supra, at 8–12; Harris, supra, at 125, 130–132; Rothwell &
Go´ mez, supra, at 3–4. The relevant question is not whether
Powerex earns a profit but where does that profit go? Here
it does not go to private shareholders; it goes to the benefit

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248 POWEREX CORP. v. RELIANT ENERGY SERVICES, INC.
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of the public in payments to the province and reduced elec
tricity prices. App. 215, 238.
The Ninth Circuit also pointed out that certain provincial
regulations that apply to other governmental departments
do not apply to Powerex. That fact proves little. The Ten
nessee Valley Authority, which is “perhaps the best known
of the American public corporations,” First Nat. City Bank
v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611,
625, n. 15 (1983), is not subject to certain federal regulations
regarding hiring that apply to other governmental depart
ments. See, e. g., 16 U. S. C. § 831b.
In sum, Powerex is the kind of government entity that
Congress had in mind when it wrote the FSIA’s “commercial
activit[y] ” provisions. See generally 28 U. S. C. § 1602
et seq.; H. R. Rep., at 15; S. Rep., at 14; Banco, supra, at
624–625.
For these reasons, I believe we should consider, and re
verse, the Ninth Circuit’s determination. With respect,
I dissent.