Linton v. Airbus Industrie , 30 F.3d 592 ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-7479
LAURA HOWELL LINTON, ET AL.,
Plaintiffs-Appellees,
versus
AIRBUS INDUSTRIE, ET AL.,
Defendants.
Consolidated with
MR. AND MRS. STAN MOSS,
INDIVIDUALLY AND AS
TEMPORARY ADMINISTRATORS
OF THE ESTATE OF ALISON
LESLIE MOSS.
Plaintiffs-Appellees,
versus
AIRBUS INDUSTRIE, ET AL.,
Defendants,
AIRBUS INDUSTRIE and
AEROFORMATION,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
(August 16, 1994)
Before GOLDBERG, KING, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Defendants-Appellants Airbus Industrie, G.I.E. ("Airbus") and
its subsidiary, Aeroformation ("AeF"), (collectively "Airbus
Defendants") were sued in state court. The Airbus Defendants
removed this case to federal court, where they sought immunity from
suit under the Foreign Sovereign Immunities Act ("FSIA").1
Jurisdiction for this removal was based on two distinct grounds:
diversity jurisdiction under 28 U.S.C. § 1332, and "federal
question" jurisdiction under the FSIA and 28 U.S.C. §§ 1441 & 1330.
In an earlier order, the district court had concluded that the
Airbus Defendants did not qualify as instrumentalities of foreign
states. The Airbus Defendants immediately appealed that order, but
in an unpublished opinion ("Airbus I")2 we dismissed that appeal
for lack of jurisdiction and remanded the case to the district
court. On remand, the district court concluded that there was no
diversity jurisdiction))hence no subject matter jurisdiction))and
accordingly remanded the case to state court under 21 U.S.C.
§ 1447.
Once again the Airbus Defendants are before us seeking review,
claiming, inter alia, that the FSIA order is an order that may be
considered separate from the order to remand under the "separable
order" doctrine; hence appellate review of the FSIA order is not
1
Codified at 28 U.S.C. §§ 1602-11.
2
Airbus Industrie v. Linton, No. 92-7564 (5th Cir. Feb. 24,
1993).
2
precluded by § 1447. As explained below, however, the FSIA order
is not "conclusive" and thus not a separable order under
controlling jurisprudence. Moreover, as the FSIA order will have
no preclusive effect on state courts, we can find no injustice here
that would warrant recalling our mandate in Airbus I so as to
consider the merits of that order.
The Airbus Defendants also claim that we may review the remand
order because the remand was erroneously based on a "post-removal"
event, i.e., a stipulation that effectively made one of the
plaintiffs "stateless," thereby destroying diversity jurisdiction.
We conclude, however, that § 1447 interdicts our jurisdiction to
review remands for lack of subject matter jurisdiction, even if
such remands are erroneously based on post-removal events.
Accordingly, this appeal is dismissed.
I
FACTS AND PROCEEDINGS
Two sets of plaintiffs sued, among others, the Airbus
Defendants in two separate suits in a Texas state court for damages
caused by a plane crash in India. The Airbus Defendants removed
these cases to federal court, where they were consolidated without
objection into one case "for all purposes." The Airbus Defendants
asserted two independent bases for jurisdiction: 1) diversity
jurisdiction under 28 U.S.C. § 1332, and 2) "federal question"
jurisdiction under the FSIA and 28 U.S.C. §§ 1441(d) & 1330(a).
Once in federal court, the Airbus Defendants filed a motion for
dismissal, claiming that: 1) they were immune from suit under the
3
FSIA; and 2) they were not subject to in personam jurisdiction. In
addition, the Airbus Defendants requested dismissal on forum non
conveniens grounds. In response, the plaintiffs filed a motion to
remand.
In a published order, the district court ruled that neither
Airbus nor its subsidiary, AeF, were instrumentalities of foreign
states.3 The essence of that ruling by the district court is that,
even assuming that the interests of several foreign countries may
be combined, ("pooling"), the interest of one of the foreign
countries here at issue))Germany))could not be included in this
particular pool. According to the district court, Germany's
interests could not be pooled with the interests of other countries
because Germany did not own a majority interest in the companies
through which Germany held its ownership interest in the Airbus
Defendants("tiering").4 Absent inclusion of Germany's interest,
neither Airbus Defendant had a majority of its shares owned by a
foreign state (or states) as required by 28 U.S.C. § 1603(b)(2).
The Airbus Defendants immediately appealed this order of the
district court. In that appeal))Airbus I))we dismissed for lack of
appellate jurisdiction.5 We concluded that, although denials of
motions to dismiss for lack of FSIA immunity generally are
appealable despite their interlocutory nature, the district court
3
Linton v. Airbus Industrie, 794 F. Supp. 650 (S.D. Tex.
1992).
4
Id. at 652-53.
5
Airbus Industrie v. Linton, No. 92-7564 (5th Cir. Feb. 24,
1993).
4
had failed to rule on the entirety of the motion before it,
specifically, on the issues of jurisdiction in personam and forum
non conveniens. In remanding, we required the district court to
"rule on plaintiffs' motions to remand and defendants' motions to
dismiss expeditiously."6
Sometime after we remanded to the district court but before it
ruled on the remanded issues, the Airbus Defendants entered into
joint stipulations with plaintiffs regarding the residency and
travel patterns of certain of those plaintiffs. Presumably the
Airbus Defendants agreed to enter into these stipulations in an
effort to bolster their forum non conveniens argument.
Unfortunately for those defendants, though, these stipulations were
to have an undesired effect.
When the district court did issue its final order on remand
from Airbus I, it addressed))but did not rule upon))the issues
remaining in the Airbus Defendants' motion to dismiss, ruling only
on the plaintiffs' motion to remand. After noting that it would
have dismissed on either in personam jurisdiction or forum non
conveniens grounds, the district court observed that there was "a
fly in this ointment." That fly had been spawned by the joint
stipulations that had the effect of recognizing one of the
plaintiffs to be a "stateless" person for jurisdictional purposes,
thereby destroying diversity jurisdiction. As that court's earlier
order had rejected the FSIA as a basis for "federal question"
jurisdiction, the district court concluded that it lacked subject
6
Id.
5
matter jurisdiction altogether, and remanded accordingly, stating:
"It is further ORDERED that Plaintiffs' Motion to Remand is GRANTED
FOR LACK OF SUBJECT MATTER JURISDICTION . . . ." Presumably due
to its lack of jurisdiction, the district court declined to issue
any order or ruling on the Airbus Defendants's motion to dismiss.
Encouraged to do so by the district court,7 the Airbus
Defendants timely appealed; and the district court stayed its
remand order pending resolution of this appeal.
II
DISCUSSION
A. Jurisdictional Bar of § 1447(d) and the FSIA
Subsection (c) of § 1447 provides in pertinent part that: "If
at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded."8 Subsection (d) of that same section provides: "An
order remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise."9 The Supreme Court has
made abundantly clear that subsection (d) operates as an absolute
bar to appellate review, stating that § 1447(d) speaks in terms of
7
Despite its remand for lack of subject matter jurisdiction,
the district court believed that the FSIA Order was separable and
appealable, stating:
As the Court understands it, an order remanding a case
for lack of subject matter jurisdiction is not
reviewable on appeal. However, Defendants are entitled
to appeal the Court's previous ruling that they are not
foreign sovereigns as defined by the Foreign Sovereign
Immunities Act ("FSIA").
8
28 U.S.C. § 1447(c) (emphasis added).
9
28 U.S.C. § 1447(d).
6
an "unmistakable command" so as to preclude review of remands for
grounds stated in § 1447(c) "by appeal, mandamus, or otherwise."10
Albeit under distinguishable circumstances, we addressed the
relationship between the FSIA and the jurisdictional bar of
§ 1447(d) in Mobil Corp. v. Abeill General Insurance Co.11 Mobil
had sued several insurance companies in a declaratory judgment
action in state court. One of those insurance companies, the
Insurance Company of Ireland ("ICI"), claimed that it was an
instrumentality of a foreign state under the FSIA and removed to
federal court. Presumably because it was engaged in a commercial
activity in the United States, ICI made no claim to immunity12; ICI
nonetheless contended that its status as an instrumentality of a
foreign state entitled it to a bench trial in a federal forum under
the FSIA and 28 U.S.C. § 1441(d). The district court disagreed,
concluding that ICI was not an instrumentality of a foreign state,
and consequently remanded to the state court))at least in partSQfor
lack of subject matter jurisdiction.13
On appeal, ICI argued that the FSIA fell within an exception
to § 1447(d). Specifically, it claimed that the decision on FSIA
immunity is typically a substantive one that would terminate the
10
See Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723
(1977) (per curiam); Thermtron Products, Inc. v. Hermansdorfer,
423 U.S. 336, 343 (1976).
11
984 F.2d 664 (5th Cir. 1993).
12
See 28 U.S.C. § 1605(a)(2) (providing that immunity does
not apply to certain types of commercial activity).
13
Id. at 665-66.
7
litigation before remand if immunity were granted. ICI also
observed that denials of sovereign immunity are subject to
interlocutory appeal. ICI thus reasoned that unique FSIA concerns
justified reviewing the district court's "substantive" decision
denying foreign-state status.14
In Mobil we flatly rejected ICI's argument. We first stated
that Congress enacted § 1447(d) so that state court actions could
proceed without delay if the district court remanded for lack of
jurisdictionSQregardless of the correctness of the district court's
jurisdictional decision.15 We then rejected any attempt to cloak
an FSIA jurisdictional call with a substantive mantel, stating that
"'[a]lthough the existence of removal jurisdiction may depend on
substantive matters, the absence of removal jurisdiction is a
procedural defect governed by § 1447(c)."16 We concluded with the
recognition that even though an unreviewed remand maySQas a
practical matterSQwork a deprivation of immunity, such a risk was
implicit in Congress's decision not to create in the FSIA an
express exception to non-reviewability.17
B. Attempts to Avoid the § 1447 Jurisdictional Bar
Against the harsh backdrop of Mobil and § 1447 the Airbus
14
Id. at 666.
15
Id.
16
Id. (quoting Hopkins v. Dlohin Titan Int'l, Inc., 976 F.2d
924, 926 (5th Cir. 1992)).
17
Id. The court in Mobil also noted that this circuit had
refused to create implicit exceptions to § 1447(d) in other
contexts. Id.
8
Defendants raise a plethora of imaginative theories to encourage
our finding of jurisdiction to hear this appeal. Unfortunately for
the Airbus Defendants, however, none of these theories "hang
together."
1. Separability Doctrine
The Airbus Defendants contend that the district court's ruling
on their status under the FSIA is a "separable order" reviewable
apart from the decision to remand. They urge that Mobil does not
control here becauseSQunlike the defendant in MobilSQthe Airbus
Defendants do not seek review of the district court's order of
remand; rather, they seek review of the FSIA order itself.
Additionally, note the Airbus Defendants, the defendant in Mobil
did not claim immunity and likely could not have, given the
commercial activity exception,18 whereas the Airbus Defendants
vigorously assert their entitlement to immunitySQwhich typically
gives rise to an order that is immediately appealable under the
Cohen collateral order doctrine. Although the Airbus Defendants
make an appealing argument, we must conclude that the FSIA order is
not "separable" and hence not reviewable on appeal.
The notion that certain orders may be reviewed on appeal if
such orders are "separable" from the order of remand originated
with the Supreme Court's decision in City of Waco v. United States
Fidelity & Guaranty Co., 293 U.S. 140 (1934). In City of Waco,
Curtis Boggs filed suit in Texas state court against the city of
Waco, Texas, and its contractor, Combs & Glade, for damages Boggs
18
See 28 U.S.C. § 1605(2).
9
allegedly caused by a street obstruction.19 The city then brought
United States Fidelity Company & Guaranty Company ("Fidelity"),
surety on a bond of Combs & Glade, into the suit by way of a
"cross-action," alleging that Fidelity "was liable under the bond
to pay whatever amount might be adjudged due by the City by reason
of the fault [Combs & Glade]."20 Fidelity removed the case to
federal court, and Boggs moved for a variety of relief, including
that the entire case be remanded or that the case against Fidelity
be dismissed and the remainder of the case remanded.21
In a single order, the district court denied Boggs' motion to
remand the entire case but granted the motion to dismiss the cross-
action, finding that as to Boggs' cause of action "the Fidelity
Company was an unnecessary and improper party."22 Because this
dismissal eliminated diversity jurisdiction, the court remanded the
remainder of the case for lack of subject matter jurisdiction.23
The Supreme Court eventually determined that the remand order
did not preclude appellate review of the dismissal order, stating:
True, no appeal lies from the order of remand; in logic and in
fact the decree of dismissal preceded that of remand and was
made by the District Court while it had control of the cause.
Indisputably, this order is the subject of an appeal; and, if
not reversed or set aside, is conclusive upon the [city of
Waco].
19
City of Waco, 293 U.S. at 141.
20
Id.
21
Id. at 141-42.
22
Id. at 142.
23
Id.
10
The Court also explained that although "a reversal cannot affect
the order of remand, . . . it will at least, if the dismissal of
the [city's] complaint was erroneous, remit the entire controversy,
with the Fidelity Company as a party, to the state court for such
further proceedings as may be in accordance with law."24
In determining whether an order is "separable" and thus can be
afforded appellate review under City of Waco, we have focused on
language in the Court's opinion suggesting that an order is
"separable" from an order of remand if it precedes that of remand
"in logic and in fact" and is "conclusive," i.e., it will have the
preclusive effect of being functionally unreviewable in the state
court.25 Although the district court's FSIA order in the instant
case may have preceded the court's order of remand "in logic and in
fact," we cannot say that it was "conclusive." In light of the
district court's ultimate conclusion that the entire case had to be
24
Id. at 143-44.
25
See, e.g., John G. & Marie Stella Kenedy Memorial Found.
v. Mauro, 21 F.3d 667, 670 (5th Cir. 1994) (determining that the
district court's dismissal of § 1983 claims barred by the
Eleventh Amendment before its remand of pendent state law claims
was reviewable on appeal); Mitchell v. Carlson, 896 F.2d 128 (5th
Cir. 1990) (concluding that the portion of a remand order that
resubstituted an individual for the United States as defendant
and thus destroyed removal jurisdiction was reviewable on appeal
because it was separable from the remand order and final for
purposes of appeal); Adams v. Sidney Schafer & Assocs., Inc. (In
re Adams), 809 F.2d 1187, 1189 (5th Cir. 1987) (explicitly
observing that unless the district court's "reinstatement" order
were reviewed on appeal, it would be "functionally unreviewable"
by the state court); cf. Soley v. First Nat'l Bank of Commerce,
923 F.2d 406, 419 (5th Cir. 1991) (explaining that district
court's determination that the plaintiff's claims were not within
the boundaries of ERISA pre-emption was a "jurisdictional
finding" under the facts of the case that could be reviewed by
the state court on remand and thus was not "separable").
11
remanded for lack of subject matter jurisdiction, the district
court's determination that the FSIA is inapplicable to the Airbus
Defendants can be deemed a jurisdictional finding under the facts
of this case and, as such, can be reviewed by the state court upon
remand.26 Under City of Waco and the jurisprudence of this circuit,
the district court's FSIA order is therefore not "conclusive" upon
the Airbus Defendants so as to be "separable" and hence reviewable
by this court.
2. Non-Preclusive Nature of FSIA Order
In apparent recognition of our inability to review the FSIA
order simpliciter, the Airbus Defendants proffer two arguments.
First, they suggest that if no other alternative method exists for
acquiring jurisdiction, we should exercise our inherent powers to
recall our earlier mandate "to prevent injustice." In support of
this contention, the Airbus Defendants point out that they have
assiduously pursued their claim of immunity, both at trial and on
appeal. Yet their appeal in Airbus I was dismissed as premature
and their second appeal is being treated as "too late."27 The
Airbus Defendants conclude that such a result effectively deprives
26
Soley, 923 F.2d at 409-410 (indicating that findings made
for the purpose of determining federal jurisdiction have no
preclusive effect on the state court); see Nutter v. Monongahela
Power Co., 4 F.3d 319, 322 (4th Cir. 1993); Baldridge v.
Kentucky-Ohio Transp., Inc., 983 F.2d 1341, 1347-50 (6th Cir.
1993); Whitman v. Raley's Inc., 886 F.2d 1177, 1181 (9th Cir.
1989); see also Mobil, 984 F.2d at 666 (rejecting an attempt to
cloak an FSIA jurisdictional call with a substantive mantel).
27
We observe the Airbus Defendant recognized this problem
early-on in their Petition for Panel Rehearing presented to the
Airbus I panel. Unfortunately, such foresight is of little help
here.
12
them of immunity, thereby working an injustice that))given the
absence of other options))can only be prevented here by a recall of
the mandate. The poignancy of this claim is enhanced by the fact
that the Airbus Defendants have, at least facially, presented a
strong factual and legal claim of immunity.28
Although the Airbus Defendants are correct in asserting that
we have authority to recall our mandate "to prevent injustice,"29
28
As noted in Part I, the resolution of the Airbus
Defendants' claim of immunity turns on whether through "tiering"
a foreign state's ownership interest can be attributed when that
foreign state did not own a majority interest in the company that
held the ownership interest in Airbus. The district court
answered this question in the negative. See Linton, 794 F. Supp.
at 653-54. Hence, Germany's interests could not be pooled since
Germany failed to own a majority interest in the companies
through which Germany held its ownership interest in the Airbus
Defendants. The controlling statute, however, erects no explicit
bar to the methods by which a foreign state may own an
instrumentality, merely requiring that the entity claiming
immunity))not its parent))have "a majority of [its] shares or
other ownership interest . . . owned by a foreign state or a
political subdivision thereof." 28 U.S.C. §1603(b)(2). There is
no mention of "voting" or "control" majority, thus equitable or
beneficial majority ownership is not expressly prohibited from
serving.
We also observe that the district court questioned whether
the interests of two or more foreign states could be combined,
commenting that "pooling" appears to be foreclosed by the use of
the state ("singular") in the FSIA. Linton, 794 F. Supp at 652.
This reasoning probably should be examined in light of the rules
of statutory construction, e.g., 1 U.S.C. §1 (providing that
"words importing the singular include and apply to several
persons, parties, or things" unless the context indicates
otherwise), and in light of the cases in which the pooling issue
has been considered. See, e.g., Le Donne v. Gulf Air, Inc., 700
F. Supp. 1400, 1405-06 (E.D. Va. 1988) (concluding that pooling
was allowed); International Ass'n of Machinists & Aerospace
Workers v. OPEC, 477 F. Supp. 553, 568-69 (C.D. Cal. 1979)
(assuming same), aff'd on other grounds, 649 F.2d 1354 (9th Cir.
1981), cert. denied, 454 U.S. 1163 (1982); Rios v. Marshall, 530
F. Supp. 351, 371 (S.D.N.Y. 1981) (assuming same).
29
See 5TH CIR. R. 41.2; see also, e.g., Masinter v. Tenneco
Oil Co., 934 F.2d 67, 68 (5th Cir. 1991) (stating that a mandate
13
we discern no such injustice here. Significantly, the district
court's conclusions regarding the FSIA status of the Airbus
Defendants were "jurisdictional" under the facts of this case; they
thereby have no preclusive effect on the state courts.30 Thus, the
only consequence of not recalling the mandate here is that the
Airbus Defendants must have the merits of their FSIA claims
determined by a state court rather than by a federal court. As
such, there is no "injustice," for our counterparts in the state
system are competent to address the Airbus Defendants' claims of
immunity under the FSIA.31 Accordingly, we decline their invitation
to recall the mandate of Airbus I.
The Airbus Defendants argue in the alternative that the
district court's failure to rule is itself an appealable denial of
immunity. In support of this claim the Airbus Defendants cite
Helton v. Clements,32 in which we held that a failure to rule on a
motion for immunity may itself constitute an appealable decision.
They point out correctly that Helton is premised on the notion that
may be recalled only to prevent injustice); Canal Ins. Co. v.
First Gen. Ins. Co., 901 F.2d 45, 46-47 (5th Cir. 1990)
(recalling mandate to modify it so that the district court could
consider awarding interest).
30
See Soley v. First Nat'l Bank of Commerce, 923 F.2d 406,
409 (5th Cir. 1991) (concluding that orders construed as
"jurisdictional" and that lead to remand under § 1447 do not have
preclusive effects on state courts); Mobil, 984 F.2d at 666
(observing that state courts would be able to reconsider the FSIA
issues after remand).
31
See 28 U.S.C. §§ 1602, 1603-11 (providing statutory grant
of concurrent jurisdiction to state courts to resolve FSIA
suits).
32
787 F.2d 1016, 1017 (5th Cir. 1986).
14
a refusal to rule on a motion for immunity effectively denies that
immunity by subjecting the defendants to the burdens of trial))the
same expense and exposure that foreign sovereign immunity is
designed to prevent.33 The Airbus Defendants complain that they are
indeed suffering here from the very harm that Helton envisioned and
sought to prevent. They insist that, by "refusing" to rule on
their motion to dismiss, the district court has subjected them to
a remand and the likelihood of trial in state court.
Although we sympathize with the Airbus Defendants's plight, we
do not read Helton as applicable to the instant facts. In Helton,
the refusal to rule subjected the defendants to the burdens of
trial, thereby effectively negating the defendant's immunity. As
noted here, however, the refusal to rule))even if it can be
properly characterized as such34))merely means that the Airbus
Defendants's claims to immunity will be considered by the state
courts instead of by a federal appellate court. Thus, unlike the
33
Id. at 1017.
34
The district court refused to rule on the motion to
dismiss on remand because it concluded that it lacked subject
matter jurisdiction. Refusing to rule under these circumstances
was proper. See, e.g., In re Carter, 618 F.2d at 1098. Thus,
the only valid complaint left is that the district court refused
to rule before the first appeal. But unlike the court in
Helton))
which explicitly refused to rule on the immunity issue))the
district court in the instant case did in fact make such a
ruling; it merely did so in a form that was presumed to be
unappealable owing to that court's failure to rule on the other
grounds raised in the motion to dismiss. Because we conclude
that the Airbus Defendants's are not precluded from reurging
their immunity defense in state court, we need not, and therefore
do not, decide whether a ruling on immunity in a form that is
deemed unappealable is itself a "refusal to rule" subject to
appeal.
15
defendants in Helton, the Airbus Defendants have not been
effectively denied their claimed immunity; they simply must have
that issue resolved in a different forum))one which undoubtedly
consider federal jurisprudence to be instructive, albeit non-
binding.
3. Mandamus and § 1447
The Airbus Defendants also contend that 1) the district court
remand was based on a "post-removal event"SQthe citizenship
stipulationSQ2) such remand meant that the case was originally
"properly removable," and 3) the remand for this post-removal event
was thus not based on a ground enumerated in § 1447(c). Therefore,
conclude the Airbus Defendants, this remand is reviewable by
mandamus.35
We find this argument intriguing yet unpersuasive. Initially,
we note that mandamus adds nothing to the authority of this court
to review jurisdictional remands under § 1447. When such a remand
order is not reviewable by appeal it is not reviewable
"otherwise."36
Turning to the merits of the Airbus Defendant's contention, we
35
The Airbus Defendants also argue that this stipulation
applied to only one of the two cases that had been consolidated
here. Hence, the order remanding both cases for lack of subject
matter jurisdiction was in error. Such an argument misapprehends
the nature of the bar in § 1447: If a district court remands for
lack of subject matter jurisdiction, then that remand order may
not be reviewed even if it were clearly erroneous. E.g.,
Tillman, 929 F.2d at 1028.
36
See 28 U.S.C. § 1447(d); Gravitt, 430 U.S. at 723
(holding that we cannot use mandamus to review a remand order
that would not be reviewable by direct appeal).
16
observe that))even if this stipulation can properly be considered
a "post-removal" event37))we have twice before concluded that
jurisdictional remands premised on post-removal events are not
reviewable. In Tillman v. CSX Transport,38 the district court
remanded for lack of subject matter jurisdiction based on a post-
removal event))the joinder of a state agency. Despite the fact
that this decision was clearly wrong))and that it was based on a
post-removal event))we held that it was nonetheless non-reviewable
because the remand was granted on § 1447(c) jurisdictional
grounds.39 Tillman merely followed our prior precedent, In re
Merrimack Mutual Fire Insurance Co.,40 in which we stated that such
remands are not reviewable in light of Supreme Court precedent and
the statutory policy of avoiding substantial delays caused by
37
The plaintiffs argue that no post-removal event is
involved here, as the stipulation merely related to the
plaintiffs status at the time of removal. Cf. Asociacion
Nacional de Pescadores v. Dow Quimica, 988 F.2d 559, 565 (5th
Cir. 1993) (concluding that affidavit which merely clarified the
amount in controversy at time of removal was not a post-removal
event). The Airbus Defendants claim that the stipulation itself
is the post-removal event; according to them the stipulation did
not relate back to the plaintiffs status at the time of removal
because the district court had previously held that the
plaintiffs' petition estopped them from contesting that status.
Cf. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 290
(1938) (events occurring subsequent to removal generally do not
oust a district court of jurisdiction). As we conclude that this
stipulation is not reviewable even if it were classified as a
post-removal event, we need not decide which of the foregoing
characterizations is more apt.
38
929 F.2d 1023, 1025 (5th Cir.), cert. denied, 112 S. Ct.
176 (1991).
39
Id. at 1028-29.
40
587 F.2d 642, 647-49 (5th Cir. 1978).
17
appellate review.
Finally, we conclude that the attempt by the Airbus Defendants
to distinguish cases such as Tillman simply does not work. 41 The
Airbus Defendants argue that Tillman involved the joinder of a
party, one of the grounds expressly enumerated in § 1447(e).
Accordingly, insist the Airbus Defendants, as this is a ground
enumerated in subsection (e) of § 1447, it falls within the bar
contained in subsection (d) of that same section. The instant case
is thus different, they urge, because it involves a remand based on
a non-enumerated groundSQthe loss of diversity jurisdiction caused
by a change in citizenship status.
But our cases, such as Tillman, are not based on any purported
"enumerated-nonenumerated" distinction between the various grounds
for the lack of jurisdiction. Rather, these cases are premised on
the concept that when the district court declares that it is
remanding for lack of subject matter jurisdiction, its remand order
may not be reviewed on appeal, no matter how erroneous. The
"operative fact" is the ultimate one))the district court's
conclusion that it no longer has jurisdiction. Efforts to dissect
the reasoning of that conclusion so as to find appellate
jurisdiction are little more than veiled attempts to investigate
41
The Airbus Defendants also cite recent precedent in the
Sixth Circuit and the Seventh Circuit that authorizes review of
remands based on post-removal events. See Baldridge v. Kentucky-
Ohio Transp., 983 F.2d 1341, 1348-49 (6th Cir. 1993); In re
Shell Oil Co., 966 F.2d 1130, 1132 (7th Cir. 1992). Airbus and
AeF do not argue, however, that these cases recognize any
groundsSQsuch as a favorable statutory changeSQthat would negate
the precedential force of Tillman and Merrimack.
18
indirectly the correctness of the district court's conclusion. Our
concluding statement in Tillman regarding the non-reviewability of
such error is instructive:
Consequently, having been erroneously remanded on
§ 1447(c) jurisdictional grounds, this case is
irretrievably beyond anything we can do about it. We
cannot review it by any means. We emphasize our complete
inability to do anything about the trial court's joinder
order, whether interlocutory or final, because what we
cannot review we cannot by some juridical self-help get
back to federal court.42
III
CONCLUSION
I call them the Wards in Jarndyce. They are caged up
with all the others. With Hope, Joy, Youth, Peace, Rest,
Life, Dust, Ashes, Waste, Want, Ruin, Despair, Madness,
Death, Cunning, Folly, Words, Wigs, Rags, Sheepskin,
Plunder, Precedent, Jargon, Gammon, and Spinach!43
Like the poor Wards in Jarndyce, the Airbus Defendants have
searched in vain for resolution of their claim. We take comfort,
though, in the fact that, unlike the Wards in Jarndyce))who were
forever consigned to wander about in the fog of Chancery court))the
Airbus Defendants will be able to have the merits of their claim of
FSIA immunity heard, albeit in state court. We are confident that
there the FSIA immunity claim and its central issues of pooling and
tiering will receive the full, objective and learned consideration
to which they are clearly entitled.
As we conclude that, under the peculiar circumstances of this
matter, the district court's remand for lack of subject matter
42
Tillman, 929 F.2d at 1029.
43
CHARLES DICKENS, BLEAK HOUSE, ch. 60 (1853).
19
jurisdiction deprives us of jurisdiction to review the instant
case, the motions of the Airbus Defendants that we recall the
mandate in Number 92-7564 and that we issue a writ of mandamus are
denied; and the motion of appellees that this appeal be dismissed
is granted.
DISMISSED.
20