Remand and Appellate Review Issues Facing the Supreme Court in Carlsbad Technology, Inc. v. HIF BIO, Inc.

This Essay provides a brief explanation of § 1367 and §§ 1447(c) and (d) and argues that the Supreme Court should reverse the Federal Circuit’s decision in HIF Bio. We contend that the Federal Circuit erred in concluding that Cohill remands are subject-matter jurisdictional because a district court does not remand supplemental claims based on its lack of power over the claims. Instead, a district court remands supplemental claims based on its discretionary decision under § 1367(c) that a state court is a better forum in which to litigate them. After establishing that Cohill remands are not subject-matter jurisdictional and therefore are reviewable on appeal, we examine the district court‘s remand order and the Federal Circuit‘s opinion in HIF Bio. We assert that in reviewing the remand order in HIF Bio and deciding that Cohill remands fall within §§ 1447(c) and (d), the Federal Circuit incorrectly applied the Supreme Court‘s recent decision in Powerex Corp. v. Reliant Energy Services, Inc. Finally, we offer a few comments about whether Cohill remands should be reviewable on appeal.