In Re: Blackwater Security v. , 460 F.3d 576 ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: BLACKWATER SECURITY 
CONSULTING, LLC, a Delaware
Limited Liability Company;
BLACKWATER LODGE AND TRAINING  No. 05-1949
CENTER, INCORPORATED, a Delaware
Corporation,
Petitioners.

IN RE: JUSTIN L. MCQUOWN,  No. 05-1992
Petitioner.

2 IN RE: BLACKWATER SECURITY CONSULTING
RICHARD P. NORDAN, as Ancillary 
Administrator for the separate
Estates of Stephen S. Helvenston,
Mike R. Teague, Jerko Gerald
Zovko and Wesley J.K. Batalona,
Plaintiff-Appellee,
and
ESTATE OF STEPHEN S. HELVENSTON;
ESTATE OF MIKE R. TEAGUE;
ESTATE OF JERKO GERALD ZOVKO;
ESTATE OF WESLEY J.K. BATALONA,
Plaintiffs,
v.
BLACKWATER SECURITY CONSULTING,
LLC, a Delaware Limited Liability
Company; BLACKWATER LODGE AND  No. 05-2033
TRAINING CENTER, INCORPORATED, a
Delaware Corporation,
Defendants-Appellants,
and
JUSTIN L. MCQUOWN, an individual;
THOMAS POWELL,
Defendants.
PROFESSIONAL SERVICES COUNCIL;
INTERNATIONAL PEACE OPERATIONS
ASSOCIATION; AMERICAN
INTERNATIONAL GROUP,
INCORPORATED,
Amici Supporting Appellants.

IN RE: BLACKWATER SECURITY CONSULTING 3
RICHARD P. NORDAN, as Ancillary 
Administrator for the separate
Estates of Stephen S. Helvenston,
Mike R. Teague, Jerko Gerald
Zovko and Wesley J.K. Batalona,
Plaintiff-Appellee,
and
ESTATE OF STEPHEN S. HELVENSTON;
ESTATE OF MIKE R. TEAGUE;
ESTATE OF JERKO GERALD ZOVKO;
ESTATE OF WESLEY J.K. BATALONA,
Plaintiffs,
v.
JUSTIN L. MCQUOWN, an individual,
Defendant-Appellant,
 No. 05-2034
and
BLACKWATER SECURITY CONSULTING,
LLC, a Delaware Limited Liability
Company; BLACKWATER LODGE AND
TRAINING CENTER, INCORPORATED, a
Delaware Corporation; THOMAS
POWELL,
Defendants.
PROFESSIONAL SERVICES COUNCIL;
INTERNATIONAL PEACE OPERATIONS
ASSOCIATION; AMERICAN
INTERNATIONAL GROUP,
INCORPORATED,
Amici Supporting Appellants.

4 IN RE: BLACKWATER SECURITY CONSULTING
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Louise W. Flanagan, Chief District Judge.
(CA-05-48-5; CA-05-48-5-FL)
Argued: March 14, 2006
Decided: August 24, 2006
Before SHEDD and DUNCAN, Circuit Judges, and
James P. JONES, Chief United States District Judge
for the Western District of Virginia, sitting by designation.
Appeal dismissed; petition for writ of mandamus denied; motion to
strike denied as moot by published opinion. Judge Duncan wrote the
opinion, in which Judge Shedd and Judge Jones joined.
COUNSEL
ARGUED: C. Allen Foster, GREENBERG TRAURIG, L.L.P.,
Washington, D.C., for Petitioners/Appellants. Marc Phillip Miles,
CALLAHAN & BLAINE, A.P.L.C., Santa Ana, California, for
Appellee. ON BRIEF: Michael P. Socarras, Joe R. Reeder, GREEN-
BERG TRAURIG, L.L.P., Washington, D.C., Kirk G. Warner, Mark
A. Ash, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL
& JERNIGAN, Raleigh, North Carolina, for Blackwater Security
Consulting, L.L.C., a Delaware Limited Liability Company, and
Blackwater Lodge and Training Center, Incorporated, a Delaware
Corporation; William C. Crenshaw, Ralph J. Caccia, Don R.
Berthiaume, POWELL & GOLDSTEIN, L.L.P., Washington, D.C.,
Patricia L. Holland, Rachel Esposito, CRANFILL, SUMNER &
HARTZOG, L.L.P., Raleigh, North Carolina, for Justin L. McQuown.
Daniel J. Callahan, Brian J. McCormack, CALLAHAN & BLAINE,
A.P.L.C., Santa Ana, California, David F. Kirby, William B. Bystryn-
ski, KIRBY & HOLT, L.L.P., Raleigh, North Carolina, for Richard
P. Nordan, as Ancillary Administrator for the separate Estates of Ste-
IN RE: BLACKWATER SECURITY CONSULTING 5
phen S. Helvenston, Mike R. Teague, Jerko Gerald Zovko and Wes-
ley J. K. Batalona. David C. Hammond, Amy E. Laderberg,
CROWELL & MORING, L.L.P., Washington, D.C., for Professional
Services Council and International Peace Operations Association,
Amici Supporting Appellants. Keith L. Flicker, FLICKER, GAREL-
ICK & ASSOCIATES, L.L.P., New York, New York, for American
International Group, Incorporated, Amicus Supporting Appellants.
OPINION
DUNCAN, Circuit Judge:
This appeal and petition for writ of mandamus require us to con-
sider the extent to which we can review a district court order remand-
ing a case to state court for lack of subject matter jurisdiction.
Concluding that the limited exceptions to the congressional proscrip-
tion of our ability to review such orders are not applicable here, we
dismiss the appeal for lack of jurisdiction and decline to issue a writ
of mandamus.
I.
Stephen S. Helvenston, Mike R. Teague, Jerko Gerald Zovko, and
Wesley J.K. Batalona (collectively, "decedents") entered into inde-
pendent contractor service agreements with Blackwater Security Con-
sulting, L.L.C., and Blackwater Lodge and Training Center, Inc.,
(collectively, "Blackwater") to provide services in support of Black-
water’s contracts with third parties in need of security or logistical
support. Blackwater assigned the decedents to support its venture with
Regency Hotel and Hospital Company ("Regency") to provide secur-
ity to ESS Support Services Worldwide, Eurest Support Services
(Cyprus) International, Ltd. ("ESS"). ESS had an agreement to pro-
vide catering, build, and design support to the defense contractor firm
Kellogg, Brown & Root, which, in turn, had arranged with the United
States Armed Forces to provide services in support of its operations
in Iraq.
According to the complaint, at the time the decedents entered into
the independent contractor service agreements on or about March 25,
6 IN RE: BLACKWATER SECURITY CONSULTING
2004, Blackwater represented that certain precautionary measures
would be taken with respect to the performance of their security func-
tions in Iraq. For example, they were told that each mission would be
handled by a team of no fewer than six members, including a driver,
navigator, and rear gunner, and would be performed in armored vehi-
cles; they would have at least twenty-one days prior to the start of a
mission to become familiar with the area and routes to be traveled;
and they would have an opportunity to do a pre-trip inspection of their
anticipated route.
Instead, the complaint alleges, Blackwater failed to provide the
decedents with the armored vehicles, equipment, personnel, weapons,
maps, and other information that it had promised, or with the neces-
sary lead time in which to familiarize themselves with the area. On
March 30, 2004, the decedents’ supervisor, Justin McQuown, directed
them to escort three ESS flatbed trucks carrying food supplies to a
United States Army base known as Camp Ridgeway. Lacking the
necessary personnel and logistical support, the decedents ultimately
became lost in the city of Fallujah. Armed insurgents ambushed the
convoy; murdered the decedents; and beat, burned, and dismembered
their remains. Two of the mutilated bodies were hung from a bridge.
Richard Nordan, in his capacity as administrator for the decedents’
estates, sued Blackwater and McQuown (hereinafter referred to col-
lectively as "Blackwater") in the Superior Court of Wake County,
North Carolina, alleging causes of action for wrongful death and
fraud under North Carolina tort law. Blackwater removed Nordan’s
action to federal district court. It asserted that 28 U.S.C. § 1441(a)
(2000) permitted removal both because the Defense Base Act
("DBA"), 42 U.S.C. §§ 1651-1654 (2000), completely preempted
Nordan’s state-law claims, and because the issues in the case pre-
sented unique federal interests sufficient to create a federal question.
Once in federal court, Blackwater moved to dismiss the case, arguing
that the district court lacked subject matter jurisdiction because the
DBA covered Nordan’s claims and, therefore, that Nordan could liti-
gate his claims only before the Department of Labor, which decides
DBA claims in the first instance.
The district court first considered whether Blackwater had met its
burden of establishing federal removal jurisdiction. Nordan v. Black-
IN RE: BLACKWATER SECURITY CONSULTING 7
water Sec. Consulting, 382 F.Supp.2d 801, 806 (E.D.N.C. 2005). In
concluding that Blackwater had not met this burden, the district court
rejected both of Blackwater’s asserted bases for removal jurisdiction.
The court reasoned that, because the DBA grants the Secretary of
Labor exclusive original jurisdiction over DBA claims, the statute
does not completely preempt state-law claims; the hallmark of com-
plete preemption, the district court concluded, is the presence of origi-
nal jurisdiction over the matter in federal district court. Id. at 807-10
(citing Lontz v. Tharp, 413 F.3d 435, 442-43 (4th Cir. 2005)). Further,
the court determined that Blackwater’s assertion of removal jurisdic-
tion by way of a unique federal interest in the adjudication of Nor-
dan’s claims "assume[d] the very conclusion which [the] court
lack[ed] jurisdiction to reach, namely that the decedents in this case
are covered as employees under the DBA." Id. at 813.
Finding no basis for removal, the district court concluded that it
lacked subject matter jurisdiction and, citing 28 U.S.C. § 1447(c)
(2000),1 determined that it must remand the case. Nordan, 382
F.Supp.2d at 813-14. Although Blackwater encouraged the district
court to remedy its lack of jurisdiction by dismissing the case rather
than remanding it, the district court further concluded that it lacked
the authority to dismiss. The court reasoned that federal district courts
play no role in the adjudication or review of DBA claims2 and, there-
fore, that it had no jurisdiction to decide whether the DBA applied to
Nordan’s claims. Id. at 814. The district court thus remanded the case
to state court without reaching the merits of Blackwater’s motion to
dismiss.
1
Section 1447(c) provides: "If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case
shall be remanded. . . . The State court may thereupon proceed with such
case."
2
The district court incorrectly concluded that the federal district courts
play no role in the adjudication of DBA claims. The federal district
courts, followed by the federal courts of appeals and the United States
Supreme Court, review DBA claims after they have been initially adjudi-
cated in the Department of Labor. See 42 U.S.C. § 1653(b) (2000); see
also Lee v. Boeing Co., Inc., 123 F.3d 801, 803-05 (4th Cir. 1997)
(describing agency and judicial review of DBA claims).
8 IN RE: BLACKWATER SECURITY CONSULTING
Blackwater now seeks review, via both an ordinary appeal and a
petition for a writ of mandamus. For the reasons that follow, we hold
that we lack jurisdiction to hear the appeal and decline to issue a writ
of mandamus.3
II.
We first address the issue of our authority to review this case by
appeal. Blackwater faces a formidable hurdle in this regard because
Congress has severely circumscribed federal appellate review of cer-
tain orders remanding a case to the state court from which it was
removed. We begin our analysis with a review of the body of law
related to and developed from that jurisdictional circumscription. We
then address whether the principles inherent in that body of law allow
us to exercise appellate jurisdiction in this case.
A.
1.
The legal principles that govern appellate jurisdiction in this case
derive from Congress’s limitation on our authority to review remand
orders. A district court order "remanding a case to the State court
from which it was removed is not reviewable on appeal or otherwise."4
28 U.S.C. § 1447(d) (2000). This limitation on review applies even
if the remand order is "manifestly, inarguably erroneous." Mangold v.
Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir. 1996) (Phillips, J.,
specially concurring and delivering the opinion of the court on the
issue of subject matter jurisdiction) (citing Gravitt v. Sw. Bell Tel.
3
Nordan moved to strike a portion of the record that Blackwater sub-
mitted on appeal. Because we dismiss the appeal and the petition for lack
of jurisdiction, we deny this motion as moot.
4
The full text of § 1447(d) is as follows:
An order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise, except that an
order remanding a case to the State court from which it was
removed pursuant to section 1443 of this title shall be reviewable
by appeal or otherwise.
IN RE: BLACKWATER SECURITY CONSULTING 9
Co., 430 U.S. 723 (1977) (per curiam)). If the plain language of the
statute were all that we had to consult, we might not tarry long with
the notion that we could entertain a review of the merits of this case.
Several cases, however, provide for limited exceptions to the reach of
§ 1447(d).5
First, the Supreme Court has interpreted § 1447(d) to prohibit
review only when the order of remand was based upon § 1447(c),
which requires remand when the district court determines that it lacks
subject matter jurisdiction. See Thermtron Prods., Inc. v. Hermans-
dorfer, 423 U.S. 336, 346 (1976) ("[O]nly remand orders issued under
§ 1447(c) and invoking the grounds specified therein . . . are immune
from review under § 1447(d)."), overruled on other grounds by
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15 (1996).
Second, § 1447(d) does not prohibit review of a collateral decision
that is severable from the remand order. See City of Waco v. U.S. Fid.
& Guar. Co., 293 U.S. 140, 143 (1934) (holding § 1447(d) inapplica-
ble to the portion of a remand order that dismissed a cross-claim
because the dismissal "in logic and in fact . . . preceded [the order]
of remand and was made by the District Court while it had control of
the cause . . . . [A]nd, if not reversed or set aside, [the dismissal] is
conclusive upon the petitioner"); see also Nutter v. Monongahela
Power Co., 4 F.3d 319, 321 (4th Cir. 1993) ("[W]here portions of a
remand order are ‘in logic and in fact’ severable from the court’s
determinations regarding remand, we may review the severable por-
tions of the order on appeal.") (citing Waco, 293 U.S. at 143).
Finally, § 1447(d) does not prohibit review of a remand order if
5
In addition to the judicially developed exceptions upon which we
focus today, § 1447(d) itself permits review of a remand order in a case
removed to federal court pursuant to 28 U.S.C. § 1443 (2000), which
concerns removal of state civil and criminal actions involving civil rights
claims. In addition, a separate statute allows review of remand orders in
cases concerning certain land restrictions applicable to the Five Civilized
Tribes of Oklahoma. See Act of Aug. 4, 1947, ch. 458, sec. 3(c), 61 Stat.
731, 732, 25 U.S.C. § 355 note (2000); see also 28 U.S.C. § 1447 note
(2000) (Exception to Subsection (d)). Neither statutory provision is at
issue in this case.
10 IN RE: BLACKWATER SECURITY CONSULTING
that order exceeds the scope of the district court’s authority. See
Thermtron, 423 U.S. at 351 (holding that § 1447(d) does not bar
review of a remand order based on "grounds that [the district court]
had no authority to consider" because such action "exceed[s] [the
court’s] statutorily defined power"); Borneman v. United States, 213
F.3d 819, 826 (4th Cir. 2000) ("§ 1447(d) prohibits review of district
courts’ determinations of whether jurisdictional statutes have been
satisfied, not review of determinations where district courts exceed
their jurisdictional authority") (citing Thermtron, 423 U.S. at 351).
The issue before us is whether one of these limited exceptions to the
broad jurisdictional proscription of § 1447(d) applies to the district
court’s actions in this case.
2.
In order to determine whether an exception to § 1447(d) allows us
to exercise appellate jurisdiction in this case, we draw from a related
body of statutory text and jurisprudence governing removal of cases
from state court to federal district court. Except as federal law may
otherwise provide, when a defendant removes a state civil action to
federal district court, federal removal jurisdiction exists if the action
is one "of which the district courts of the United States have original
jurisdiction." § 1441(a). Among other categories of cases, the federal
district courts possess original jurisdiction over civil cases raising fed-
eral questions, which are "all civil actions arising under the Constitu-
tion, laws, or treaties of the United States." 28 U.S.C. § 1331 (2000).
Removal jurisdiction is not a favored construction; we construe it
strictly in light of the federalism concerns inherent in that form of fed-
eral jurisdiction. See Lontz, 413 F.3d at 440. The party seeking
removal bears the burden of demonstrating that removal jurisdiction
is proper. See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d
148, 151 (4th Cir. 1994).
Under what has become known as the well-pleaded complaint rule,
§ 1331 federal question jurisdiction is limited to actions in which the
plaintiff’s well-pleaded complaint raises an issue of federal law;
actions in which defendants merely claim a substantive federal
defense to a state-law claim do not raise a federal question. See Louis-
ville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908). In
other words, a defendant may not defend his way into federal court
IN RE: BLACKWATER SECURITY CONSULTING 11
because a federal defense does not create a federal question under
§ 1331.
The doctrine of complete preemption provides a corollary to the
well-pleaded complaint rule. This doctrine recognizes that some fed-
eral laws evince such a strong federal interest that, when they apply
to the facts underpinning the plaintiff’s state-law claim, they convert
that claim into one arising under federal law. See, e.g., Caterpillar,
Inc. v. Williams, 482 U.S. 386, 393 (1987). Because complete pre-
emption transforms a state-law claim into one arising under federal
law, "the well pleaded complaint rule is satisfied" even though the
complainant never intended to raise an issue of federal law. Lontz,
413 F.3d at 441. However, "the sine qua non of complete preemption
is a preexisting federal cause of action that can be brought in the dis-
trict courts. . . . Congress’s allocation of authority to an agency and
away from district courts defeats a complete preemption claim . . . ."
Id. at 442-43. The doctrine of complete preemption, therefore, con-
cerns itself with the uniquely jurisdictional inquiry into whether a pur-
portedly state-law claim actually arises under federal law so as to
create federal jurisdiction over that claim.
By contrast, under the principles of "ordinary" preemption, some
federal laws may simply provide either a substantive defense to a
plaintiff’s state-law claims or a right to adjudication of those claims
in a federal administrative forum or according to a federal scheme.
See generally id. at 440. "Complete preemption is a jurisdictional
doctrine, while ordinary preemption simply declares the primacy of
federal law, regardless of the forum or the claim." Id. (internal quota-
tion marks and citation omitted). The presence of ordinary federal
preemption thus does not provide a basis for federal question jurisdic-
tion, and, in a case removed from state court on the basis of federal
question jurisdiction, is relevant only after the district court has deter-
mined that removal was proper and that it has subject matter jurisdic-
tion over the case.
B.
We now turn our attention to the district court’s actions in this case
to determine whether § 1447(d) removes our ability to hear it.
12 IN RE: BLACKWATER SECURITY CONSULTING
1.
As we have explained, § 1447(d) bars appellate review of a remand
order only if that order was issued pursuant to § 1447(c)’s instruction
to remand removed cases over which the district court possesses no
subject matter jurisdiction. See Thermtron, 423 U.S. at 346. However,
a district court’s mere citation to § 1447(c) is insufficient to bring a
remand order within the purview of that provision. We must instead
look to the substantive reasoning behind the order to determine
whether it was issued based upon the district court’s perception that
it lacked subject matter jurisdiction. See, e.g., Borneman, 213 F.3d at
824-25 ("Whether a district court’s remand order is reviewable under
§ 1447(d) is not determined by whether the order explicitly cites
§ 1447(c) or not. The bar of § 1447(d) applies to any order invoking
substantively one of the grounds specified in § 1447(c).") (internal
citation omitted).
The district court’s remand order in this case clearly falls within
the ambit of § 1447(c)’s requirement of remand in the absence of sub-
ject matter jurisdiction. The court first concluded that the DBA did
not completely preempt overlapping state law and thus did not create
a federal question. Nordan, 382 F.Supp.2d at 807-11. It then reasoned
that Blackwater’s assertion of a unique federal interest in the adjudi-
cation of Nordan’s claims likewise did not confer federal removal
jurisdiction. Id. at 811-13. The district court cited the untenability of
these two suggested jurisdictional bases as the source of its decision
to remand the case. "[T]his court lacks subject matter jurisdiction over
this cause of action . . . . [W]here the court finds no basis for subject
matter jurisdiction, § 1447(c) compels the court to remand this action
to state court. . . . Accordingly . . . remand, rather than dismissal for
lack of subject matter jurisdiction, is proper." Id. at 813-14.
To conclude that the remand order was issued pursuant to
§ 1447(c), we need not delve into whether the district court was cor-
rect to hold that it lacked subject matter jurisdiction over the removed
action. Rather, an order is issued pursuant to section § 1447(c) if the
district court perceived that it was without jurisdiction over the cause.
See, e.g., Mangold, 77 F.3d at 1450 (holding that courts must "look
past contextually ambiguous allusions and even specific citations to
§ 1447(c) to determine by independent review of the record the actual
IN RE: BLACKWATER SECURITY CONSULTING 13
grounds or basis upon which the district court considered it was
empowered to remand"). Furthermore, as we have noted, § 1447(d)’s
jurisdictional bar applies with equal force to unassailably correct and
"manifestly, inarguably erroneous" orders of remand. Id. Because the
reasoning behind the district court’s remand order in this case indi-
cates the court’s belief that it lacked subject matter jurisdiction upon
removal, we conclude that the remand order was issued pursuant to
§ 1447(c) and, consequently, that § 1447(d) prohibits our review of
that order.
2.
Having determined that the order before us was, indeed, predicated
upon § 1447(c), and therefore within the purview of § 1447(d), we
turn now to a consideration of whether one of the other judicially cre-
ated exceptions to § 1447(d) applies. The severable order exception
to § 1447(d) set forth in Waco allows appellate review of certain dis-
tinct component decisions that may be issued as part of a remand
order. We first discuss the contours of the Waco severable order
exception and then consider whether Waco permits review of two
constituent aspects of the district court’s remand order.
a.
The Supreme Court in Waco construed § 1447(d) not to prohibit
categorically appeals of certain orders in cases that had been
remanded to state court. In that case, the district court dismissed the
claim upon which the court’s removal jurisdiction had been based; it
then remanded the case to the state court because, once the claim was
no longer part of the case, no basis for federal jurisdiction existed.
The Supreme Court held that § 1447(d)’s prohibition of appellate
review did not apply to the order dismissing the claim, even though
it clearly applied to the remand order itself. Waco, 293 U.S. at 143-
44. The order dismissing the claim was appealable, the Court rea-
soned, because "in logic and in fact the decree of dismissal preceded
that of remand and was made by the District Court while it had con-
trol of the cause. Indisputably this order is the subject of an appeal;
and, if not reversed or set aside, is conclusive upon the petitioner." Id.
at 143. The Court concluded that, though action on the order of dis-
missal "cannot affect the order of remand . . . it will at least, if the
14 IN RE: BLACKWATER SECURITY CONSULTING
dismissal of the petitioner’s complaint was erroneous, remit the entire
controversy . . . to the state court . . . ." Id. at 143-44.
This circuit has construed Waco to require, at a minimum, that the
purportedly reviewable order have a conclusive effect upon the par-
ties’ substantive rights. See Nutter, 4 F.3d at 321. We have interpreted
this conclusiveness requirement to mean that the challenged order
must have a preclusive effect in subsequent proceedings. See id.As the Supreme Court recently reiterated, Waco also requires that
the reviewable decision be able to be "disaggregated" from the
remand order itself because "the order of remand cannot be affected
notwithstanding any reversal of a separate order." Kircher v. Putnam
Funds Trust, 126 S. Ct. 2145, 2156 n.13 (2006) (internal quotation
marks and citation omitted). Similarly, other circuits have had occa-
sion to recognize as a key component of Waco the requirement that
the reviewable decision be logically and factually precedent to the
remand order. See, e.g., Carlson v. Arrowhead Concrete Works, Inc.,
445 F.3d 1046, 1052 (8th Cir. 2006) (holding that Waco requires that
the reviewed decision be both conclusive on the parties and logically
and factually precedent to the remand order); Hernandez v. Seminole
County, 334 F.3d 1233, 1241 (11th Cir. 2003) (construing Waco to
require the challenged decision to be both conclusive on the parties
and logically and factually precedent to the remand order); Christo-
pher v. Stanley-Bostitch, Inc., 240 F.3d 95, 99 (1st Cir. 2001) (holding
Waco applicable to a decision that was not "inextricably intertwined
with" or essential to the remand order); Carr v. Am. Red Cross, 17
F.3d 671, 675 (3d Cir. 1994) (explaining that Waco requires the
reviewed portion of a remand order to be "both logically precedent to,
and separable from, the remand decision" and measuring the sever-
ability of an issue by whether the district court reached it as part of
an inquiry into the existence of subject matter jurisdiction); see also
Kimbro v. Velten, 30 F.3d 1501, 1503 (D.C. Cir. 1994) (concluding
that Waco applies to decisions that "logically precede[ ] the question
of remand") (internal quotation marks and citation omitted). Our pre-
cedent also suggests that Waco applies to orders that are logically and
factually "antecedent" to the order of remand. See Borneman, 213
F.3d at 825 (holding § 1447(d) inapplicable to two "antecedent com-
ponents of the district court’s remand order"). We therefore conclude
IN RE: BLACKWATER SECURITY CONSULTING 15
that logical and factual severability, along with conclusiveness, are
central requirements of Waco’s exception to § 1447(d).
b.
i.
Blackwater argues that Waco permits appellate review of the dis-
trict court’s choice of remedy for its lack of removal jurisdiction. Spe-
cifically, the district court denied as moot Blackwater’s motion to
dismiss for lack of jurisdiction, choosing instead to cure its lack of
removal jurisdiction by remanding Nordan’s claims to state court.
According to Blackwater, the district court’s denial of its motion to
dismiss is reviewable because it conclusively decided Blackwater’s
assertion that the DBA and the Constitution’s foreign affairs and war
powers clauses convey upon it an immunity from suit in either state
or federal court. This position relies heavily on our decision in Shives
v. CSX Transp., Inc. (In re CSX Transp., Inc.), 151 F.3d. 164 (4th Cir.
1998). For the reasons that follow, its reliance is misplaced.
Shives concerned a railroad employee’s action in state court under
the Federal Employers’ Liability Act ("FELA"), 45 U.S.C.A. §§ 51-
60 (West 1986 & Supp. 2006), against his employer for injuries that
he had sustained while unloading a train at a marine terminal. The
employer removed the case to federal court, claiming that the case
raised a federal question. The employer then moved to dismiss the
case, arguing that, because the employee had been injured while per-
forming maritime work, he could receive compensation for that injury
only by filing a claim with the United States Department of Labor
under the Longshore and Harbor Workers Compensation Act
("LHWCA"), 33 U.S.C.A. §§ 901-950 (West 2001 & Supp. 2006).
Because 28 U.S.C. § 1445(a) (2000) prohibited removal of FELA
claims that had been initiated in state court, the district court first had
to determine whether the FELA or the LHWCA covered the employ-
ee’s claims. The district court concluded that the employee had not
been engaged in maritime work and, therefore, that the LHWCA did
not apply. Because the LHWCA did not apply, the court concluded,
the claim had been properly filed under the FELA. The district court
then remanded the case to state court because § 1445(a) prohibited
removal of the case.
16 IN RE: BLACKWATER SECURITY CONSULTING
"[W]ith some delicacy," we exercised appellate jurisdiction of the
employer’s appeal of the remand order. Shives, 151 F.3d at 168. We
first concluded that the remand was not based on the district court’s
perceived lack of subject matter jurisdiction and, therefore, that it had
not been issued pursuant to § 1447(c). Id. at 167. The district court,
we reasoned, had not perceived that it lacked subject matter jurisdic-
tion over the employee’s FELA claim because federal and state courts
have concurrent original jurisdiction over such claims. Id. Instead, it
had remanded the case because § 1445(a) prohibited removal in that
instance. Id.
Alternatively, we concluded that the district court’s decision con-
cerning the LHWCA’s applicability to the employee’s claim was a
"conceptual antecedent" to the order of remand. Id. We noted that let-
ting the remand order stand would
commit to the state courts the decision of whether the
LHWCA provided coverage to the employee. To follow that
course would thus deprive the federal courts of their proper
role in resolving this important issue and would circumvent
Congress’ intent that LHWCA coverage issues be resolved
in the first instance by the Department of Labor and ulti-
mately in the federal courts of appeals.
Id.
The procedural posture of this case distinguishes it from Shives in
two critical particulars. First, as already noted, in Shives we exercised
appellate jurisdiction over an appeal of a remand order that we some-
what hesitantly construed to be predicated upon § 1445(a)’s prohibi-
tion against removal of state-filed FELA claims, not upon § 1447(c)’s
mandate to remand in the absence of subject matter jurisdiction. See
id. at 167-68. Because the Supreme Court has clarified that
§ 1447(d)’s restriction on review applies only to remand orders made
pursuant to § 1447(c), see Thermtron, 423 U.S. at 346, we concluded
that § 1447(d) did not prohibit appellate jurisdiction, see Shives, 151
F.3d at 167. In other words, appellate jurisdiction existed in Shives
because the district court’s order did not rest upon lack of subject
matter jurisdiction, the ground set forth in § 1447(c).6 By contrast, as
6
We drew a similar conclusion in Mangold, 77 F.3d at 1452, a decision
that Blackwater misguidedly cites to ameliorate its jurisdictional position
IN RE: BLACKWATER SECURITY CONSULTING 17
we have explained, the district court remanded this case under
§ 1447(c) for lack of subject matter jurisdiction.
The second distinction that defeats Blackwater’s reliance on Shives
to support appellate jurisdiction in this case is the existence in Shives
of a "conceptual antecedent" to the district court’s remand order. As
we have noted, a key component of Waco’s collateral order exception
is that the challenged order "in logic and in fact . . . preceded that of
remand." Waco, 293 U.S. at 143. The district court in Shives faced,
on the one hand, § 1445(a), which prohibited removal of state-filed
FELA claims, and, on the other hand, a notice of removal claiming
that the plaintiff’s claim was not brought under the FELA but was
instead preempted by the LHWCA. We concluded in Shives that the
district court had remanded the case because § 1445(a) prohibited
removal of FELA claims. See 151 F.3d at 167. In order to reach its
conclusion that § 1445(a) prohibited removal, the district court in
Shives had to determine whether the LHWCA applied to the employ-
ee’s claim. If the LHWCA was applicable, it would erase § 1445(a)’s
protection of state-filed FELA claims from removal. Shives thus pre-
sented the court of appeals with an LHWCA coverage decision by the
district court, a distinct determination that was not entangled with the
jurisdictional analysis supporting the remand order. Shives itself does
not cite to Waco or explain how the LHWCA coverage decision at
issue in that case satisfied Waco’s severability standard. It is never-
theless clear that we took appellate jurisdiction in Shives because the
district court made a decision that was a "conceptual antecedent" to
the remand order. That conceptual antecedent took the form of the
district court’s substantive ruling that, because the plaintiff had not
been engaged in maritime employment, the application of the
LHWCA had not been triggered in that case. See id.
No such conceptual antecedent exists here. The district court made
no DBA coverage decision that might form the basis of our review.
In Shives, the district court reached the issue of the LHWCA’s appli-
in this case. In that case, we concluded that § 1447(d) did not prohibit
appellate review of the district court’s remand order because that order
did not arise from the district court’s perception that it lacked subject
matter jurisdiction, and thus was not issued pursuant to § 1447(c). Id.
18 IN RE: BLACKWATER SECURITY CONSULTING
cation to the plaintiff’s claim, but not because it needed help deciding
how to remedy its lack of removal jurisdiction. Rather, a determina-
tion of LHWCA coverage in Shives was a necessary step in the dis-
trict court’s inquiry into the permissibility of removal. Here, the
district court appropriately did not decide whether the DBA applied
to Nordan’s claims because such an inquiry was both unnecessary to
its jurisdictional analysis and unreachable on the merits once the court
had determined that removal jurisdiction was absent.7
The fact that the district court’s order made no determination of
DBA coverage has significance beyond serving to distinguish the
facts before us from those in Shives. It also supports our conclusion
that the denial of Blackwater’s motion to dismiss was not conclusive
upon its substantive rights. We note again the caution in Nutter that,
for the purpose of determining whether an order meets the criteria of
Waco, "[a]t a minimum, the challenged portion of the order must
affect the parties’ substantive rights" by having a preclusive effect in
subsequent proceedings. Nutter, 4 F.3d at 321. Here, the district court
made no determination with respect to whether the DBA covered
Nordan’s claims. One of the first principles of preclusion, however,
is that the precluding order either actually determined the issue sought
to be precluded (in the case of issue preclusion) or issued a final judg-
ment on the merits (in the case of claim preclusion). See, e.g., Martin
v. Am. Bancorporation Ret. Plan, 407 F.3d 643, 650, 653 (4th Cir.
2005). Therefore, neither the district court’s refusal to decide whether
the DBA applies to Nordan’s claims, nor its concurrent conclusion
that it lacked jurisdiction to reach the merits of the case will have any
preclusive effect on Blackwater’s ability to assert in state court its
arguments concerning ordinary federal preemption.
We further note that remanding despite a potential federal defense
does not hamstring the litigation of that defense in state court. In
7
Another case upon which Blackwater significantly relies is also dis-
tinguishable on this basis. In Jamison v. Wiley, 14 F.3d 222, 233 (4th Cir.
1994), we concluded that Waco’s exception permitted review of the dis-
trict court’s refusal to substitute the United States as a defendant. We so
concluded because the district court decided to deny substitution "before
it decided to remand the case to state court, while it still had control of
the case." Id.IN RE: BLACKWATER SECURITY CONSULTING 19
Lontz, 413 F.3d 435, we decided a similar case in which the defendant
had removed a state labor dispute to federal court, claiming federal
question jurisdiction via complete preemption. The Lontz defendant
had claimed complete preemption on the theory that Sections 7 and
8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 157-
158 (2000), required resolution of certain labor disputes before the
National Labor Relations Board ("NLRB") rather than in state or fed-
eral court. We concluded that the NLRA provisions do not completely
preempt state law and that the district court consequently lacked fed-
eral question removal jurisdiction. Lontz, 413 F.3d at 442-43. We
directed the district court to remand, rather than dismiss, claims that,
if the NLRA applied to them, would not be justiciable in state court.
See id. at 443-44. We recognized in Lontz that, to the extent that the
NLRA applied to the plaintiff’s claims, the statute entitled the defen-
dant to adjudication of those claims solely before the NLRB. See id.Nevertheless, that possible entitlement did not transform a defense of
ordinary federal preemption into a right to a federal forum in which
to raise and litigate that defense on the merits. Furthermore, "the futil-
ity of a remand to [state court] does not provide an exception to the
plain meaning of § 1447(c)." Roach v. W. Va. Reg’l Jail & Corr.
Facility Auth., 74 F.3d 46, 49 (4th Cir. 1996). We therefore see no
reason why Blackwater’s possible entitlement to adjudication before
the Department of Labor should allow it to characterize the district
court’s denial of its motion to dismiss as a conclusive denial of a sub-
stantive right.
Finally, once a district court determines that it lacks subject matter
jurisdiction over a removed case, § 1447(c) directs that the case "shall
be remanded." This mandate is so clear that, once a district court has
found that it lacks subject matter jurisdiction in a removed case, no
other fact-finding, legal analysis, or exercise of judicial discretion is
necessary in order to follow the congressional directive; the decision
to remand a case to remedy a lack of subject matter jurisdiction is
purely ministerial. See Int’l Primate Prot. League v. Adm’rs of Tulane
Educ. Fund, 500 U.S. 72, 89 (1991) (noting that § 1447(c) grants "no
discretion to dismiss rather than remand [a removed] action" in which
subject matter jurisdiction is lacking (internal quotation marks and
citation omitted)), superseded on other grounds by 28 U.S.C.
§ 1442(a)(1) (2000). We therefore conclude that the district court’s
"decision" to remand instead of dismiss is not only not conclusive, but
20 IN RE: BLACKWATER SECURITY CONSULTING
also intimately enmeshed with and unseverable from the remand
order.
ii.
We similarly do not have jurisdiction under Waco’s severable order
exception to review the district court’s conclusions that neither com-
plete preemption nor a unique federal interest created a federal ques-
tion for the purposes of removal. Our decision in Nutter, 4 F.3d 319,
forecloses the possibility.
The Nutter defendant had claimed that removal jurisdiction was
proper because two federal statutes completely preempted the plain-
tiff’s state-law claims and, therefore, presented federal questions. The
district court rejected this complete preemption argument and
remanded the case to state court for lack of removal jurisdiction. We
concluded that this determination that the federal statutes did not
completely preempt Nutter’s state-law claims would have no preclu-
sive effect in subsequent proceedings and thus that it was not a deci-
sion that was conclusive upon the parties. Id. at 321-22.
Similarly here, the district court’s findings regarding complete pre-
emption could foreclose state-court litigation of Blackwater’s DBA
and constitutional claims only if principles of preclusion prevented
Blackwater from later raising a defense of ordinary federal preemp-
tion. Here, as we did in Nutter, we conclude that the district court’s
finding that complete preemption did not create federal removal juris-
diction will have no preclusive effect on a subsequent state-court
defense of federal preemption. We conclude that Nutter’s reasoning
applies with equal force to the district court’s companion conclusion
that Blackwater’s asserted unique federal interest could not convey
federal removal jurisdiction.
In addition, the district court’s complete preemption and unique
federal interest analysis cannot be disengaged from the remand order
itself. In Nutter, we concluded that the district court’s complete pre-
emption conclusion was unseverable from its determination that it
lacked removal jurisdiction: "the [district] court’s findings regarding
preemption and jurisdiction are indistinguishable. The preemption
findings were merely subsidiary legal steps on the way to its determi-
IN RE: BLACKWATER SECURITY CONSULTING 21
nation that the case was not properly removed." Id. at 321 (internal
quotation marks and citation omitted). Indeed, the district court’s con-
clusions here with respect to complete preemption and the presence
of a unique federal interest cannot be severed from the remand order,
as they are simply the necessary legal underpinning to the court’s
determination that the case was not properly removed.8
3.
As we have explained, § 1447(d) also does not apply to remand
orders based upon factors that the district court was not statutorily
authorized to consider. See Thermtron, 423 U.S. at 351. A district
court exceeds its statutory authority when it remands a case "on
grounds that seem justifiable to [the court] but which are not recog-
nized by the controlling statute." Id. For example, in Thermtron the
Supreme Court held that § 1447(d) does not prohibit review of a
8
Blackwater additionally argues that it is the functional equivalent of
a federal officer and that removal jurisdiction therefore existed in the dis-
trict court under 28 U.S.C. § 1442(a) (2000). Blackwater failed to raise
this issue before the district court. Citing 28 U.S.C. § 1653 (2000),
Blackwater nevertheless invites us to deem its notice of removal to be
amended to include § 1442(a) as an asserted basis for removal, to inter-
pret the district court’s failure to consider that basis as severable from its
remand order under Waco, and thereby to create jurisdiction to review an
issue that the district court never considered.
While "[d]efective allegations of jurisdiction may be amended, upon
terms, in the trial or appellate courts," § 1653, Blackwater did not simply
omit to cite to § 1442(a). Rather, it failed to argue before the district
court that the provision supported removal. This court generally declines
to consider issues raised for the first time on appeal absent a fundamental
miscarriage of justice. See, e.g., Muth v. United States, 1 F.3d 246, 250
(4th Cir. 1993). Even if it were appropriate, at this point, to deem an
action taken that Blackwater never sought to take, it would not cure
Blackwater’s waiver of the possible jurisdictional basis by failing to mar-
shal arguments and evidence in support of it below. See Venkatraman v.
REI Sys., Inc., 417 F.3d 418, 421-22 (4th Cir. 2005) (holding that a mis-
carriage of justice had not occurred, so as to require appellate review,
when the district court failed to consider a cause of action not presented
to it). We therefore do not consider whether § 1447(d) bars our review
of this newly raised issue.
22 IN RE: BLACKWATER SECURITY CONSULTING
remand order based on the district court’s assessment that its docket
was too crowded to hear the case. Id.
Blackwater argues that the court exceeded its authority by remand-
ing the case instead of dismissing it. The district court declined to dis-
miss the case as an alternative to remand because it determined that
it did not have the authority to decide whether the DBA applied to
Nordan’s claims. Nordan, 382 F.Supp.2d at 814. It based this deter-
mination upon the erroneous belief that district courts play no role in
the federal judicial review of DBA claims.9 Id. Blackwater claims that
this error concerning the pipeline of review of DBA claims demon-
strates that the district court exceeded its authority by remanding and
that the order is therefore not subject to § 1447(d)’s prohibition of
review. It contends that the district court’s remand order had nothing
to do with its stated lack of removal jurisdiction and was instead
based on an erroneous interpretation of the DBA’s judicial review
provisions.
The district court did not remand on statutorily unauthorized
grounds. Rather, as we have already explained, the remand order was
based upon the district court’s judgment that removal jurisdiction was
not present. Of course, we need look no further than § 1447(c) to con-
clude that Congress has not only authorized remand under such a cir-
cumstance, but also emphatically required it. The district court’s error
concerning the mechanism of judicial review of DBA claims is a non
sequitur to its determination that remand was necessary because it
lacked subject matter jurisdiction to reach any issue other than the
removability of the action.
The correctness of the district court’s jurisdictional analysis is irrel-
evant under § 1447(d). See Mangold, 77 F.3d at 1450. If it were not,
we could circumvent the statute simply by declaring the remand order
to be wrong. Such an interpretation of § 1447(d) would eviscerate the
9
As we have noted, the federal district courts, followed by the federal
courts of appeals and the United States Supreme Court, review DBA
claims after they have been initially adjudicated in the Department of
Labor. See 42 U.S.C. § 1653(b) (2000); see also Lee v. Boeing Co., Inc.,
123 F.3d 801, 803-05 (4th Cir. 1997) (describing agency and judicial
review of DBA claims).
IN RE: BLACKWATER SECURITY CONSULTING 23
congressional policy of limiting litigation over the procedural matters
that give rise to remand orders. We also need not decide whether, pos-
sessing a proper understanding of the district court’s role in the judi-
cial review of DBA claims, the district court would have been correct
to dismiss the case rather than remand it. For the purposes of
§ 1447(d), the only relevant aspect of the district court’s decision not
to dismiss the case is that it was grounded upon a perceived lack of
subject matter jurisdiction to decide DBA claims. The presence of an
error in that analysis does not change its jurisdictional character.
Thermtron’s exception to § 1447(d) for ultra vires remands thus does
not apply in this case.
4.
Finally, Blackwater argues that § 1447(d) does not prohibit appel-
late review in this case because the district court’s decision to remand
undermines the constitutional sequestration of foreign affairs and war
powers within the political branches of the federal government, out
of reach of both the federal and the state judiciaries. Specifically, it
contends that:
Even if the DBA is not applicable, the constitutional separa-
tion of powers would preclude judicial intrusion into the
manner in which the contractor component of the American
military deployment in Iraq is trained, armed, and deployed.
Decedents were performing a classic military function —
providing an armed escort for a supply convoy under orders
to reach an Army base — with authorization from the Office
of the Secretary of Defense that classified their missions as
"official duties" in support of the Coalition Provisional
Authority. Federal courts, and a fortiori state courts, may
not impose liability for casualties sustained in the battlefield
in the performance of these duties. A North Carolina trial
court may not adjudicate national political questions that the
Supreme Court has deemed non-justiciable by federal
courts.
Br. of Appellant pp. 10-11.
Blackwater overstates both the extent of our decision today and the
state of the record. What we have before us is a complaint alleging
24 IN RE: BLACKWATER SECURITY CONSULTING
that the decedents were independent contractors working for a secur-
ity company, a notice of removal, a motion to dismiss, and a remand
order. Without intending to diminish the magnitude of the concerns
that Blackwater articulates, we are unprepared to say at this juncture
that the Constitution overrides Congress’s ability to prescribe the lim-
its of federal appellate jurisdiction in matters such as these.
Blackwater’s argument that neither federal nor state courts may
decide decedents’ claims also proves too much. Distilled to their
essence, Blackwater’s arguments appear to be that we must have
jurisdiction because we have no jurisdiction and that our founding
document simultaneously creates and prohibits jurisdiction in this
case. Both constitutional interpretations are too extravagantly recur-
sive for us to accept. It is, in fact, axiomatic under our federalist sys-
tem of government that state courts have the authority to decide
federal constitutional issues. Blackwater may assert in state court,
subject to review by the United States Supreme Court, its defenses
regarding the constitutional exclusivity of a federal administrative
remedy. As we recently noted in Lontz, the ability of a state court "to
determine its own jurisdiction is a serious obligation, and not some-
thing that federal courts may easily take for themselves." 413 F.3d at
442. For these reasons, we decline to graft a new exception onto the
already significantly burdened text of § 1447(d).
III.
Blackwater alternatively claims that, even if § 1447(d) prohibits
appellate jurisdiction, we should issue a writ of mandamus to the dis-
trict court. We are unpersuaded.
We may issue a writ of mandamus if the petitioner has no other
adequate means to obtain relief to which there is a "clear and indispu-
table" right. Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424,
433 (4th Cir 2005). "Mandamus is a drastic remedy to be invoked
only in extraordinary situations." United States v. Moussaoui, 333
F.3d 509, 516 (4th Cir. 2003) (internal quotation marks and citation
omitted). Before we may determine whether Blackwater has met these
stringent requirements, however, we must first inquire whether we
have the authority to issue the writ.
IN RE: BLACKWATER SECURITY CONSULTING 25
A.
Congress’s restriction on review of remand orders applies to
review "on appeal or otherwise." § 1447(d). The Supreme Court has
interpreted this language to forbid the use of mandamus to circumvent
the requirements of § 1447(d). Thermtron, 423 U.S. at 343. Given that
§ 1447(d) precludes our ability to review the district court’s order by
appeal, precedent dictates that it applies to preclude our review by
mandamus as well.
Further, given the state of the record at this juncture, reflecting
only cursory, untested factual allegations, mandamus would still be
inappropriate under these circumstances. Mandamus is an extraordi-
nary remedy whose issuance depends upon the discretion of the court
considering the petition. United States ex rel. Rahman v. Oncology
Assocs., 198 F.3d 502, 511 (4th Cir. 1999) (citing Kerr v. U.S. Dist.
Court for the N. Dist. of Cal., 426 U.S. 394, 403 (1976)). As the
Supreme Court has instructed, we refrain from issuing a writ of man-
damus in all but the most extraordinary circumstances to avoid cir-
cumventing congressional judgments about the proper scope of
appellate jurisdiction. See Kerr, 426 U.S. at 403 ("A judicial readiness
to issue the writ of mandamus in anything less than an extraordinary
situation would run the real risk of defeating the very policies sought
to be furthered by [the] judgment of Congress.").
B.
Blackwater argues, however, that we may issue a writ of manda-
mus because this case presents a conflict between § 1447(d) and the
DBA. We held in Borneman that § 1447(d) could not "be read cate-
gorically when other statutes in tension with it are considered." 213
F.3d at 825. Because we interpreted the statute creating that tension
to prohibit absolutely the district court’s remand of the case, we con-
cluded that this tension alternatively permitted review via mandamus.
Id. at 826. However, the statute "in tension" with § 1447(d) in Borne-
man declared that certain state-court actions brought against federal
employees "shall be removed." 28 U.S.C. § 2679(d)(2) (2000).10 That
10
The tension-creating statute in Borneman was a portion of the Fed-
eral Employees Liability Reform and Tort Compensation Act of 1988
26 IN RE: BLACKWATER SECURITY CONSULTING
statute thus directly and specifically addressed the removability of the
relevant class of claims and contained language that channeled the
district court’s authority to remand in such cases. This absence of dis-
cretion to remand created the tension of which we spoke in Borne-
man. 213 F.3d at 825. By contrast, Blackwater has not identified any
portion of the DBA that similarly addresses either the removability to
federal district court of state court actions purportedly preempted by
the DBA or the district court’s peculiar lack of discretion with respect
to remand of such cases.11
C.
Blackwater next argues that we may issue a writ of mandamus
because the remand order risks unnecessary tension between state and
federal judicial fora on an extraordinarily important question of fed-
eral law. Blackwater attempts to characterize our opinions in Man-
gold, Jamison, and Shives as authority for the proposition that a writ
of mandamus may issue despite the applicability of § 1447(d) simply
because the remand will have the practical effect of allowing a state
court to decide a federal issue. Blackwater misapprehends the import
of our jurisprudence in two fundamental respects.
First, Blackwater contorts the meaning of Thermtron, in which the
Supreme Court held that federal appellate courts may review via man-
("the Westfall Act"). Sections 5 and 6 of the Westfall Act, 28 U.S.C.
§ 2679(b), (d) (2000), give federal employees absolute immunity from
liability in tort for actions within the scope of their employment and
create a procedural mechanism by which this immunity is enforced.
When a federal employee is sued for a tort committed within the scope
of his or her employment, the Attorney General may issue a certification
that the facts underlying the claim did in fact arise within the scope of
the defendant’s federal employment. § 2679(d)(1)-(2). If such a certifica-
tion is issued in a case brought in state court, the case "shall be removed
without bond . . . to the [appropriate federal] district court," where the
court must substitute the United States as the sole defendant.
§ 2679(d)(2).
11
Indeed, the statutory authority under which Blackwater sought
removal in this case simply allows that state-court actions raising a fed-
eral question "may be removed" to federal district court. § 1441(a).
IN RE: BLACKWATER SECURITY CONSULTING 27
damus remand orders that are not covered by § 1447(d). The Therm-
tron Court concluded that, even though § 1447(d) did not apply to the
remand order at issue, the order was nevertheless unreviewable by
appeal because it was not a final judgment. 423 U.S. at 352-53, over-
ruled by Quackenbush, 517 U.S. at 714-15 (holding that remand
orders are final for the purposes of appellate review). Thermtron,
therefore, established mandamus as a means to circumvent not
§ 1447(d)’s proscription against review of certain remand orders, but
the finality requirement of 28 U.S.C. § 1291 (2000). 423 U.S. at 352-
53. Similarly, in Mangold and Jamison, we referred to the use of the
writ of mandamus not as an end-run around § 1447(d) but as an alter-
native to satisfaction of § 1291 or membership in the narrow class of
collateral orders reviewable under Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546-47 (1949). See Mangold, 77 F.3d at 1453;
Jamison, 14 F.3d at 233-34. Because we conclude that Blackwater
has not overcome the hurdle of § 1447(d), we have no occasion to
consider whether the doctrine of finality has been satisfied in this
case.
Second, Blackwater fails to acknowledge a key difference between
the record before us today and the record before us in Shives. We
expressed in Shives some doubt about our ability to exercise appellate
jurisdiction, but concluded that we could, in the alternative, issue a
writ of mandamus "[t]o avoid forfeiting the federal courts’ role of
reviewing LHWCA coverage issues." 151 F.3d at 167. As we have
explained, in Shives, the district court decided whether the employ-
ee’s claim, which had been filed in state court under the FELA, was
in fact covered by the LHWCA. If the FELA provided the employee
with his cause of action, then removal was improper because
§ 1445(a) prohibits removal of state-filed FELA claims. However, if
the LHWCA governed the claim instead, the employee could not pro-
ceed under the FELA and § 1445(a) would not apply. Determination
of the applicability of the LHWCA to the employee’s claims was,
therefore, a critical step in the district court’s inquiry into the propri-
ety of removal in that case. Furthermore, the parties had stipulated to
the facts relevant to the question of whether the LHWCA applied to
the employee’s claim. Shives thus presented the court of appeals with
an order in which the district court actually decided, on an uncon-
tested factual record and as part of its inquiry into the permissibility
of removal, whether the LHWCA covered the plaintiff’s claims.
28 IN RE: BLACKWATER SECURITY CONSULTING
Here, as we have explained, we have no coverage question to
review — and rightfully so, as the district court did not need to reach
that issue as part of its removal jurisdiction analysis — nor do we
have a factual record in which the legally material facts are uncon-
tested. Given the preliminary nature of the proceedings below and the
resulting lack of adversarial development of the factual allegations in
this case, as well as the absence of an independently reviewable order,
mandamus is not only not compelled by Shives but is also particularly
inappropriate. We therefore decline to expand Shives so far afield of
the original congressional intent embodied in § 1447(d).
IV.
For the foregoing reasons, we conclude that we lack jurisdiction to
hear this case and grant Nordan’s motion to dismiss Blackwater’s
appeal. We also deny Blackwater’s petition for a writ of mandamus.
Finally, we deny as moot Nordan’s motion to strike.
APPEAL DISMISSED;
PETITION FOR WRIT OF MANDAMUS DENIED;
MOTION TO STRIKE DENIED AS MOOT