Remand (court procedure)
||The examples and perspective in this article may not represent a worldwide view of the subject. (March 2012)|
For example, if the trial judge committed a procedural error, failed to admit evidence or witnesses that the appellate court ruled should have been admitted, or ruled improperly on a litigant's motion, the appellate court may send the case back to the lower court for retrial or other action.
A case is said to be "remanded" when the superior court returns or sends back the case to the lower court. Also, a court may be said to retry the case "on remand."
When the United States Supreme Court grants certiorari and reverses a decision of a state supreme court or a Federal appeals court, it may remand the case. Likewise, an appeals court may remand a case to a trial court. A remand may be a full remand, essentially ordering an entirely new trial; when an appellate court grants a full remand, the lower court's decision is "reversed and remanded."
Alternatively, it may be "with instructions" specifying, for example, that the lower court must use a different legal standard when considering facts already adduced at trial. It may also be a partial remand as when an appellate court affirms a conviction while directing the lower court to revisit the sentencing phase. Finally, it may remand a case upon concluding that the lower court not only made a mistake but also did not adjudicate issues that must be considered.
A federal court may also remand when a civil case is filed in a state court and the defendant removes the case to the local federal district court. If the federal court decides that the case was not one in which removal was permissible, it may "remand" the case to state court. Here, the federal court is not an appellate court as in the case above, and the case was remanded because the removal to the federal court was improperly taken, not that the state court did anything erroneous.
In the federal tribunals in the United States, it is also possible for an Article III court to remand a case to an Article I court (if the case was originally decided by the Article I court and then appealed to the Article III court), or for a higher-level administrative tribunal within an executive agency to remand a case to a lower-level tribunal within the same agency.
While Article III courts are allowed to remand a case back to Article I courts, there is a recent trend divesting magistrate judges from the power to remand cases back to state court. The same statutory basis for divesting magistrate judges of their power to remand may logically be applied to Article I judges.
- "Remand". TheLawEncyclopedia.com. 2004. Archived from the original on 5 February 2010. Retrieved 1 February 2012.
- Examples: 20 C.F.R. 404.983–20 C.F.R. 404.984 and 20 C.F.R. 416.1483–20 C.F.R. 416.1484, pertaining to the remand of cases from the United States Federal courts to the Social Security Administration's Office of Disability Adjudication and Review.
- Examples: 20 C.F.R. 404.977 and 20 C.F.R. 416.1477, pertaining to the remand of cases from the Appeals Council in the Office of Disability Adjudication and Review of the Social Security Administration to an administrative law judge of the Office of Disability Adjudication and Review in the Social Security Administration.
- Flam v. Flam, 12-17285 (9th Cir. June 8, 2015).
- Rosenbloom, David H.; O'Leary, Rosemary (1997). Public Administration and Law. New York: M. Dekker. p. 66. ISBN 978-0-585-08202-8.
- Van, Dervort T. R.; Van, Dervort T. R. (2000). American Law and the Legal System: Equal Justice Under the Law. Albany, NY: West Legal Studies/Thomson Learning. p. 186. ISBN 978-0-7668-1740-1.
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