Jayme Hill, Plaintiff-counter-defendant-appellee, v. New Mexico School for the Deaf, State of New Mexico, Ex Rel;mitzi Baker-garland; Thomas J. Dillon, Iii; Carolynsessa; J. Floyd Trujillo, Individually and in Theirofficial Capacities As Members of the Board of Regents Ofthe New Mexico School for the Deaf; Gilbert Delgado,individually and in His Official Capacity As Superintendentof New Mexico School for the Deaf; Lynn Ann Barbero,individually and in Her Official Capacity As Principal Ofnew Mexico School for the Deaf; Jim Lucero, Individuallyand in His Official Capacity As Counselor at New Mexicoschool for the Deaf; W.n. "bill" Dixon, Defendants-appellants. v. State of New Mexico, Ex Rel. Risk Management Division Newmexico State of New Mexico; New Mexico School for the Deaf,state of New Mexico, Ex Rel. Risk Management Division Ofthe General Services Department of the State of New Mexico,ex Rel., Counter and Cross-claim Defendants, 110 F.3d 73 (10th Cir. 1997)

Jayme Hill filed this action in state court against defendants State of New Mexico ex rel. New Mexico School for the Deaf, five of the School's Board of Regents, the School's principal and superintendent, and Jim Lucero, a School counselor, all in their individual and official capacities, alleging that Lucero sexually harassed plaintiff. Plaintiff then amended the complaint adding federal law claims under 42 U.S.C. § 1983, Title IX, and the Americans with Disabilities Act. Defendants removed the case to federal court under 28 U.S.C. § 1441. The district court, however, determined that the Eleventh Amendment precluded federal jurisdiction over the damages claims against the state and the individual defendants in their official capacities, and that neither the New Mexico Tort Claims Act nor defendants' removal motion waived this immunity. See N.M. Stat. Ann. § 41-4-4-(F). The district court found that "an Eleventh Amendment bar renders the entire action non-removable, necessitating remand of the case in its entirety," Appellants' App. 81, relying, inter alia, on Flores v. Long, 926 F. Supp. 166 (D.N.M. 1995). Following our opinion issued this day in Flores v. Long, No. 95-2224 (10th Cir. April 1, 1997), we hold the district court remand order was based on a lack of subject matter jurisdiction, and thus we are barred from reviewing the remand order through appeal or mandamus. See 28 U.S.C. § 1447(c) & (d); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 349-52 (1976). We therefore DISMISS the appeal and DENY defendants' application for a writ of mandamus.