Linton v. Airbus Industrie

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in an unpublished opinion ("Airbus I")2 we dismissed that appeal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).

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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.

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