Introduction

Winn v. Wakat concerns two consolidated appeals arising from August Wakat’s attempts to remove state-court matters to federal court. The first matter was an Oklahoma foreclosure action brought by Henry J. Winn and Linda I. Winn after Mr. Wakat allegedly defaulted on a mortgage connected to a real-estate purchase. The second involved Mr. Wakat’s attempted removal of Texas state criminal proceedings, along with an effort to add Mr. Winn as a party.

Proceeding pro se, Mr. Wakat invoked two removal statutes: 28 U.S.C. § 1441(a), the general civil-removal statute, and 28 U.S.C. § 1442(a)(1), the federal-officer removal statute. He claimed removal was proper because he was “a Special Agent of the U.S. Department of the Treasury.” The district court rejected both removals and awarded costs and fees. The Tenth Circuit affirmed the remand orders but dismissed the appeals from the fee awards for lack of appellate jurisdiction.

Summary of the Opinion

The Tenth Circuit reached three principal conclusions:

• Appellate jurisdiction existed to review the remand orders. Although 28 U.S.C. § 1447(d) generally bars appellate review of remand orders, that bar does not apply where removal was asserted under § 1442. Because Mr. Wakat’s notices of removal expressly invoked § 1442(a)(1), the court had jurisdiction to review the remand orders.
• The remand orders were affirmed. Mr. Wakat failed to preserve or adequately challenge the district court’s grounds for remand. His diversity-jurisdiction argument was not raised below and was not presented under plain-error review on appeal. He also failed to challenge the district court’s rulings that § 1442(a)(1) did not apply and that the foreclosure removal was procedurally defective.
• The appeals from costs and fees were dismissed. When Mr. Wakat filed his notices of appeal, the district court had not yet determined the amount of costs and fees. Because he did not file new or amended notices of appeal after the amounts were set, the Tenth Circuit lacked jurisdiction to review those awards.

Analysis

Precedential Status

The order and judgment states that it is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may, however, be cited for persuasive value under Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Its practical significance lies in its clear application of removal-review rules, preservation principles, and appellate-finality requirements for fee awards.

Precedents Cited

• Hall v. Bellmon — The court cited this case for the rule that pro se filings are construed liberally. This helped frame the court’s treatment of Mr. Wakat’s filings, but liberal construction did not relieve him from preserving arguments or satisfying removal requirements.
• Chicago, Rock Island & Pacific Railway Co. v. Martin — The district court relied on this authority for the procedural rule requiring consent of other defendants to removal. The Tenth Circuit did not revisit the issue because Mr. Wakat waived any challenge to that ground.
• Powerex Corp. v. Reliant Energy Servs., Inc. — Cited for the principle that appellate review of remand orders is substantially limited by statute, especially by § 1447(d).
• Miller v. Lambeth — The Tenth Circuit used this case to explain that remand orders based on lack of subject-matter jurisdiction or defects in removal procedure are ordinarily insulated from appellate review unless a statutory exception applies.
• BP P.L.C. v. Mayor & City Council of Balt. — This was central to the jurisdictional analysis. It establishes that a case is removed “pursuant to” § 1442 or § 1443 when the notice of removal asserts removal under one of those provisions. Even a frivolous invocation can trigger appellate review under § 1447(d).
• Carlsbad Tech., Inc. v. HIF Bio, Inc. and City of Albuquerque v. Soto Enters., Inc. — These cases were cited to confirm that § 1447(d) is treated as a jurisdictional limitation on appellate review.
• Colorado v. Lopez, First Union Mortg. Corp. v. Smith, and Lopez v. Cantex Health Care Ctrs. II, LLC — These authorities showed that the Tenth Circuit has long treated invocation of § 1442 or § 1443 in a notice of removal as sufficient to permit appellate review of a remand order.
• Richison v. Ernest Grp., Inc. — Cited for the rule that a party who forfeits an argument in district court must argue plain error on appeal; failure to do so ends the argument.
• Tompkins v. U.S. Dep't of Veterans Affs. — Used to clarify that although courts have an independent duty to consider subject-matter jurisdiction, appellate courts may decline to consider waived arguments that might have supported jurisdiction.
• Sawyers v. Norton — Cited for the rule that issues not raised in an opening brief are abandoned or waived.
• Collins v. Daniels — Provided the rule that an appeal from sanctions or fees generally cannot be taken until the amount has been determined.
• HCG Platinum, LLC v. Preferred Prod. Placement Corp. — Applied to hold that once the fee amount was later determined, Mr. Wakat needed to file a new or amended notice of appeal.
• United States v. Smalls — Cited for the court’s ability to take judicial notice of district-court filings not included in the appellate record.

Legal Reasoning

The court’s reasoning proceeded in two stages. First, it asked whether it had jurisdiction to review the remand orders. Section 1447(d) generally prevents appellate courts from reviewing remand orders, especially where remand is based on lack of subject-matter jurisdiction or procedural defects. But the statute creates an exception for cases removed under § 1442 or § 1443. Because Mr. Wakat’s notices expressly invoked § 1442(a)(1), the Tenth Circuit held that appellate review was available.

Second, the court considered whether Mr. Wakat had shown reversible error. He had not. In the foreclosure appeal, his diversity-jurisdiction argument was raised too late, and he did not request plain-error review. He also failed to challenge the district court’s conclusion that he had not established federal-officer status under § 1442(a)(1). In the criminal-removal appeal, he failed to address the district court’s two core rulings: that § 1441(a) does not apply to criminal cases and that § 1442(a)(1) was unavailable because he had not shown he was a federal officer or representative.

The court separately dismissed the appeals from the cost-and-fee awards. The notices of appeal were premature because the district court had not yet set the amount of the awards. Once the amounts were later determined, Mr. Wakat needed to file new or amended notices of appeal. Because he did not, the appellate court lacked jurisdiction over those fee issues.

Impact

The opinion reinforces several practical rules:

• A party can obtain appellate review of a remand order by invoking § 1442 in the notice of removal, even if the assertion is weak or frivolous.
• Invoking § 1442 is not enough to win. The removing party must still provide facts showing a valid federal-officer basis for removal.
• Arguments not raised in district court, or not developed in the opening appellate brief, are likely waived.
• Section 1441(a) is limited to civil actions and cannot support removal of state criminal prosecutions.
• Fee and sanctions awards generally require a separate or amended notice of appeal after the amount is fixed.

For future litigants, especially pro se parties, the case is a warning that federal removal requires more than labels, conclusory claims, or statutory citations. Procedural precision matters at every stage.

Complex Concepts Simplified

• Removal: Moving a case from state court to federal court.
• Remand: Sending a removed case back to state court.
• 28 U.S.C. § 1441(a): The general civil-removal statute. It applies only when the federal court would have original jurisdiction, such as federal-question or diversity jurisdiction.
• 28 U.S.C. § 1442(a)(1): The federal-officer removal statute. It protects federal officers and certain persons acting under them from being forced to litigate qualifying cases in state court.
• Subject-matter jurisdiction: A court’s legal power to hear a type of case.
• Waiver/forfeiture: Losing an argument by failing to raise it at the proper time.
• Plain error: A demanding appellate standard sometimes used when an argument was not raised below.
• Notice of appeal: The filing that gives an appellate court authority to review a lower-court decision. If a later fee amount is set, a new or amended notice may be required.

Conclusion

Winn v. Wakat confirms that a notice of removal invoking § 1442 can open the door to appellate review under § 1447(d), but it does not cure unsupported removal allegations or waived appellate arguments. The Tenth Circuit affirmed the remands of both the Oklahoma foreclosure action and the Texas criminal proceedings, and it dismissed the challenges to costs and fees because the fee awards were not properly appealed after the amounts were fixed.

The key takeaway is procedural: removal, preservation, and appellate jurisdiction each have independent requirements. A litigant must satisfy all of them to obtain meaningful appellate relief.