Laura Howell Linton, Individually and As the Personalrepresentative of the Estates of Andrew Jay Howelland Sarah Stoll Howell, Deceased, and Onbehalf of Rena Howell, et al.,plaintiffs-appellees, v. Airbus Industrie, et al., Defendants,airbus Industrie and Aeroformation, Defendants-appellants.mr. and Mrs. Stan Moss, Individually and As Temporaryadministrators of the Estate of Alison Lesliemoss, Plaintiffs-appellees, v. Airbus Industrie, et al., Defendants,airbus Industrie and Aeroformation, Defendants-appellants, 30 F.3d 592 (5th Cir. 1994)

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 Sec. 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.

* 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 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 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 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 Sec. 1447(d) and the FSIA

Subsection (c) of Sec. 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 Sec. 1447(d) speaks in terms of an "unmistakable command" so as to preclude review of remands for grounds stated in Sec. 1447(c) "by appeal, mandamus, or otherwise."¹⁰ 

Albeit under distinguishable circumstances, we addressed the relationship between the FSIA and the jurisdictional bar of Sec. 1447(d) in Mobil Corp. v. Abeille 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 part--for lack of subject matter jurisdiction.¹³ 

On appeal, ICI argued that the FSIA fell within an exception to Sec. 1447(d). Specifically, it claimed that the decision on FSIA immunity is typically a substantive one that would terminate the 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 Sec. 1447(d) so that state court actions could proceed without delay if the district court remanded for lack of jurisdiction--regardless 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 Sec. 1447(c)."¹⁶  We concluded with the recognition that even though an unreviewed remand may--as a practical matter--work 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 Sec. 1447 Jurisdictional Bar

Against the harsh backdrop of Mobil and Sec. 1447 the Airbus 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."

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 because--unlike the defendant in Mobil--the 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 immunity--which 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.¹⁹  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 allegedly caused by a street obstruction.²⁰  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]."²¹  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.²² 

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."²³  Because this dismissal eliminated diversity jurisdiction, the court remanded the remainder of the case for lack of subject matter jurisdiction.²⁴ 

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].

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."²⁵ 

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.²⁶  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 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.²⁷  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.

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."²⁸  The Airbus Defendants conclude that such a result effectively deprives 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.²⁹ 

Although the Airbus Defendants are correct in asserting that we have authority to recall our mandate "to prevent injustice,"³⁰  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.³¹  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.³²  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,³³  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 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.³⁴  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 such³⁵ --merely means that the Airbus Defendants' claims to immunity will be considered by the state courts instead of by a federal appellate court. Thus, unlike the 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 considers federal jurisprudence to be instructive, albeit non-binding.

The Airbus Defendants also contend that 1) the district court remand was based on a "post-removal event"--the citizenship stipulation--2) 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 Sec. 1447(c). Therefore, conclude the Airbus Defendants, this remand is reviewable by mandamus.³⁶ 

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 Sec. 1447. When such a remand order is not reviewable by appeal it is not reviewable "otherwise."³⁷ 

Turning to the merits of the Airbus Defendant's contention, we observe that--even if this stipulation can properly be considered a "post-removal" event³⁸ --we have twice before concluded that jurisdictional remands premised on post-removal events are not reviewable. In Tillman v. CSX Transportation, Inc.,³⁹  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 Sec. 1447(c) jurisdictional grounds.⁴⁰  Tillman merely followed our prior precedent, In re Merrimack Mutual Fire Insurance Co.,⁴¹  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 appellate review.

Finally, we conclude that the attempt by the Airbus Defendants to distinguish cases such as Tillman simply does not work.⁴²  The Airbus Defendants argue that Tillman involved the joinder of a party, one of the grounds expressly enumerated in Sec. 1447(e). Accordingly, insist the Airbus Defendants, as this is a ground enumerated in subsection (e) of Sec. 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 ground--the 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 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 Sec. 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.⁴³ 

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!⁴⁴ 

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 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.