SCALIA, J., dissenting

by a United States district court"); § 1819(b)(2)(C) (same); 25 U. S. C. § 487(d) ("[T]he United States shall have the right to appeal from any order of remand in the case"). Even § 1447(d) itself exempts certain remand orders from its own appellate-review bar. See n. 1, supra. "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 creates a new ground for removal." Things Remembered, 516 U. S., at 128 (internal quotation marks omitted). As the Court recognized in Kircher, "[t]here is no such 'clear statutory command' here, and that silence tells us we must look to 28 U. S. C. § 1447(d) to determine the reviewability of remand orders under the Act." 547 U. S., at 641, n. 8. Were the Court in this case to look to § 1447(d), instead of looking for a way around § 1447(d), the answer would be abundantly clear.

II

Respondents argued that, even if the remand order is unreviewable on appeal, the District Court's rejection of the Attorney General's certification should be reviewable as a logically distinct determination, citing Waco v. United States Fidelity & Guaranty Co., 293 U. S. 140 (1934). See ante, at 254 (SOUTER, J., concurring in part and dissenting in part) (adopting this argument).

The continuing vitality of Waco is dubious in light of more recent precedents, see Kircher, supra, at 645-646, n. 13. We need not address that question here, however, since Waco is patently inapposite. There, removal had been premised on diversity jurisdiction. The District Court dismissed the party whose citizenship was alleged to supply the requisite diversity, finding that party's joinder improper, and thus remanded the case for lack of jurisdiction. We found the dismissal order to be reviewable on appeal, even though the remand order was not. 293 U. S., at 143. But there is a

SCALIA, J., dissenting

crucial distinction between that case and this one: In Waco, reversal of the dismissal would not have subverted the remand. There was no question that the suit would proceed in state court regardless of whether the diverse party was rightfully or wrongfully dismissed. Nowhere did the Waco Court so much as hint that the District Court might need to reexamine its remand order; to the contrary, it was clear that the remand would occur, no matter what: "If the District Court's [dismissal] order stands, the cross-action will be no part of the case which is remanded to the state court. . . . A reversal cannot affect the order of remand, but it will at least, if the dismissal of the petitioner's complaint was erroneous, remit the entire controversy, with the [diverse party] still a party, to the state court for such further proceedings." Id., at 143-144 (emphasis added). In other words, the remand order and the dismissal order were truly "separate orders," id., at 142; we could review-even reverse-the dismissal order without affecting the remand or its impact on the case.

Today's case far more closely resembles Kircher. There, the remand order had been predicated upon a finding that the cause of action was not a "covered" class-action suit as defined by the Securities Litigation Uniform Standards Act of 1998 (SLUSA), 112 Stat. 3227, and therefore that the federal courts lacked jurisdiction. The District Court remanded so the suit could continue in state court, outside the confines of SLUSA. If the suit had been "covered," SLUSA would have precluded the action from going forward in any court, state or federal. 15 U. S. C. § 77p(b). We therefore determined that neither the remand itself nor the determination of SLUSA inapplicability was reviewable on appeal: "The District Court's remand order here cannot be disaggregated as the Waco orders could, and if [we were to find the suit to be covered by SLUSA], there [would be] nothing to remand to state court." 547 U. S., at 646, n. 13. That is

SCALIA, J., dissenting

precisely the situation in this case: The remand here is predicated upon a finding that the United States should not be substituted as a defendant under the Westfall Act. If we were to disagree with the District Court and substitute the United States as a defendant, while at the same time recognizing (as § 1447(d) requires) that there is nothing we can do about the remand order, the case would go back to state court as an action under the Federal Tort Claims Act (FTCA), see ante, at 230, and the remanded case would be styled Osborn v. United States. But the state court would have to dismiss such a case at once, since federal courts have exclusive jurisdiction over FTCA suits. 28 U. S. C. § 1346(b)(1). Thus, as in Kircher, but unlike Waco, the District Court's decision on the preliminary matter-here, Westfall Act certification; in Kircher, SLUSA applicability-is inextricably intertwined with the remand order. Since that is so, there is no jurisdiction to review either determination.

*

In an all-too-rare effort to reduce the high cost of litigation, Congress provided that remand orders are completely unreviewable "on appeal or otherwise." Section 1447(d) effectuated a tradeoff of sorts: Even though Congress undoubtedly recognized that some remand orders would be entered in error, it thought that, all in all, justice would better be served by allowing that small minority of cases to proceed in state courts than by subjecting every remanded case to endless rounds of forum disputes. "[B]y denying any form of review of an order of remand," "Congress ... established the policy of not permitting interruption of the litigation of the merits of a removed cause by prolonged litigation of questions of jurisdiction of the district court to which the cause is removed." United States v. Rice, 327 U. S. 742, 751 (1946). Today, in its uncompromising pursuit of technical perfection at all costs, this Court has repealed the tradeoff. One might suggest that Congress should restore it, but it is

SCALIA, J., dissenting

hard to imagine new statutory language accomplishing the desired result any more clearly than § 1447(d) already does. I would vacate the Sixth Circuit's judgment in its entirety, since that court, like this one, plainly lacked jurisdiction.

Syllabus

CUNNINGHAM v. CALIFORNIA

CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT

No. 05-6551. Argued October 11, 2006-Decided January 22, 2007 Petitioner Cunningham was tried and convicted of continuous sexual abuse of a child under 14. Under California's determinate sentencing law (DSL), that offense is punishable by one of three precise terms of imprisonment: a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years. The DSL obliged the trial judge to sentence Cunningham to the 12-year middle term unless the judge found one or more additional "circumstances in aggravation." Court Rules adopted to implement the DSL define "circumstances in aggravation" as facts that justify the upper term. Those facts, the Rules provide, must be established by a preponderance of the evidence. Based on a post-trial sentencing hearing, the judge found by a preponderance of the evidence six aggravating facts, including the particular vulnerability of the victim, and one mitigating fact, that Cunningham had no record of prior criminal conduct. Concluding that the aggravators outweighed the sole mitigator, the judge sentenced Cunningham to the upper term of 16 years. The California Court of Appeal affirmed. The State Supreme Court denied review, but in a decision published nine days earlier, People v. Black, 35 Cal. 4th 1230, 113 P. 3d 534, that court held that the DSL survived Sixth Amendment inspection. Held: The DSL, by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. Pp. 281–294.

(a) In Apprendi v. New Jersey, 530 U. S. 466, this Court held that, under the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. See id., at 490. The Court has applied the rule of Apprendi to facts subjecting a defendant to the death penalty, Ring v. Arizona, 536 U. S. 584, 602, 609, facts permitting a sentence in excess of the "standard range" under Washington's Sentencing Reform Act (Reform Act), Blakely v. Washington, 542 U. S. 296, 304-305, and facts triggering a sentence range elevation under the then-mandatory Federal Sentencing Guidelines, United States v. Booker, 543 U. S. 220, 243-244. Blakely and Booker bear most closely on the question presented here.