## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 17 2001 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LISA T. KENNEDY,

Plaintiff - Appellee,

v. No. 00-1507 CLEMENCE LUBAR,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 00-M-2301)

Andrew W. Volin, Sherman & Howard, Denver, Colorado (Raymond M. Deeny, Sherman & Howard, Colorado Springs, Colorado, with him on the briefs), for Defendant-Appellant. Curtis L. Kennedy, Denver, Colorado, for Plaintiff- Appellee.

Before TACHA , Chief Circuit Judge, and McKAY and ANDERSON , Circuit Judges.

ANDERSON , Circuit Judge.-2-

Plaintiff-Appellee Lisa T. Kennedy brought suit aga inst DefendantAppellant Clemence Lubar in Colorado state court, a sserting state common law claims for “[t]ortious [i]nterference with [e]mploy ment [r]elations” and tortious interference with “[p]rospective [e]mployment [r]el ations.” Compl. at 14, App. to Br. of Def.-Appellant (“App.”) at 17. Kennedy was employed as a part-time pharmacist in Store 100 of the King Soopers chain o f grocery stores, and Lubar was her pharmacy manager. Kennedy alleges that Lub ar engaged in intentional, malicious and willful misconduct which allegedly ca used her termination from Store 100 and her inability to obtain subsequent employment at other King Soopers stores. Lubar removed the case to the United States Distric t Court for the District of Colorado based on her assertion that Kennedy’s s tate law claims were preempted by § 301 of the Labor Management Relations A ct (“LMRA”), 29 U.S.C. § 185(a), and that the federal district court there fore had original subject matter jurisdiction over Kennedy’s claims. Notice of Remo val at ¶¶ 4 and 8, App. at 23-24. Thereafter, Lubar filed a motion to dismiss Kennedy’s state law claims, also on the basis of federal preemption under § 301 . Mot. to Dismiss at ¶¶ 3 and 19, App. at 49 and 60. Kennedy responded with a motion for remand, asserti ng that the federal district court lacked jurisdiction over her state l aw claims because they were not1 We note, however, that Lubar is free to raise her s ubstantive pre-emption

defense in Colorado state court, and can re-file he r 12(b)(6) motion to dismiss in that forum. See , e.g. , Niehaus v. Greyhound Lines, Inc. , 173 F.3d 1207, 1212 (continued...) -3- pre-empted by § 301. Mot. for Remand at 1 and 8, App. at 137 and 144. The district court agreed and remanded the case, statin g as follows: The defendant filed a notice of removal on November22, 2000, asserting that the claims are pre-empted by the Lab or Management Relations Act, 29 U.S.C. § 185. The plaintiff file d a motion for remand on November 28, 2000. Upon careful review o f the allegations of the complaint, it is clear that thes e are tort claims against an individual and not against the employer for a violation of any collective bargaining agreement or under any fe deral law. Order of Remand at 1, App. at 146. Thereafter, Lubar simultaneously filed a Petition f or Writ of Mandamus and a Notice of Appeal. A two-judge panel of this court denied Lubar’s Petition for Writ of Mandamus, holding that although this court had jurisdiction to review the district court’s remand, the appropriate vehicle for redress was a direct appeal. In re Clemence Lubar , No. 00-1504, Order at 2 (10th Cir. Jan. 18, 2001) , App. at 173. On appeal, Lubar asks this court to vacate th e district court’s Order of Remand, and to instruct the district court to dismi ss Kennedy’s claims with prejudice on the basis of federal pre-emption under§ 301. Br. of Def.-Appellant at 30. Although Lubar has made a very strong case for pre-emption, we must nonetheless dismiss the appeal because 28 U.S.C. § 1447(d) absolutely precludes us from reviewing the district court’s Order of Remand. 11 (...continued)

(9th Cir. 1999) (recognizing that even though plain tiff’s pre-emption claims were insufficient to invoke federal subject matter juris diction and avoid remand, defendant was not precluded from raising pre-emptio n as a substantive defense in state court proceedings); Lyons v. Alaska Teamsters Emp. Serv. Corp. , 188 F.3d 1170, 1172 (9th Cir. 1999) (holding that although “ determining jurisdiction will necessarily involve analyzing whether there is pree mption of the plaintiff’s claims. . ., the preemption determination made for purposes of determining jurisdiction has no bearing on whether the defendant can actually establish a substantive preemption defense”). -4- 28 U.S.C. § 1447(d) states that, subject to certain exceptions not applicable here, “[a]n order remanding a case to the State cou rt from which it was removed is not reviewable on appeal or otherwise. . . .” T his strong statutory limitation on appellate review applies, however, only to remands based on 28 U.S.C. § 1447(c). Albertson’s, Inc. v. Carrigan , 982 F.2d 1478, 1479-80 (10th Cir. 1993). See also Dalrymple v. Grand River Dam Auth. , 145 F.3d 1180, 1184 (10th Cir. 1998). Section 1447(c) specifically allows district courts to order remand if there has been a “defect in removal procedure,” or if it dete rmines, at any time prior to final judgment, that it “lacks subject matter juris diction.” If a district court orders remand on either of these grounds, § 1447(d) absolutely prohibits appellate review of the order, and we adhere firmly to this p rohibition even where we believe that the district court was plainly incorrect. Archuleta v. Lacuesta , 131 F.3d 1359, 1363 (10th Cir. 1997). In determining whether or not a district court rema nded the case on the grounds provided in § 1447(c), “we must independent ly review the record to-5-

determine the actual grounds upon which the distric t court believed it was empowered to remand.” Dalrymple , 145 F.3d at 1184. “An explicit reference to § 1447(c) does not automatically render a remand or der non-reviewable. . . . Nor does the absence of such a reference automatically confer appellate jurisdiction over a remand order.” Id. (citation omitted). Thus, we must consider a dist rict court’s order of remand as a whole, reviewing it in its entirety and considering the motions and issues actually before the district cou rt. Applying these standards to the current case, it is clear that the district court’s sole basis for ordering remand was its dete rmination that it lacked subject matter jurisdiction over Kennedy’s state law claims . Although the district court did not expressly use the term “subject matter juri sdiction” in its Order of Remand, the only fair reading of that order is thatthe district court’s decision was based entirely on its determination that Kennedy’s state tort claims were not pre-empted by § 301, and that, as such, there was n o basis for the court to exercise jurisdiction over her lawsuit. The distri ct court specifically found that Kennedy’s claims against her supervisor, as an indi vidual, did not allege “a violation of any collective bargaining agreement or under any federal law .” Order of Remand at 1, App. at 146 (emphasis added). Impl icit in this finding is a determination that it lacked subject matter jurisdi ction over Kennedy’s claims. Moreover, Kennedy’s motion for remand itself assert ed that remand was required2 See Mot. for Remand at 1, App. at 137 (document entitl ed “MOTION FOR

REMAND (Lack of Subject Matter Jurisdiction),” and asserting that the action was “wrongfully removed, as this federal court full y lacks subject matter jurisdiction to address any aspect of Plaintiff’s s tate law claims”); id. at 8, App. at 144 (asserting that “Plaintiff did not file this ca se in federal court for the simple reason there is no federal court subject matter jur isdiction”). -6- only because the federal court lacked subject matte r jurisdiction where her state law claims were not pre-empted by § 301. 2 A complete and accurate reading of the Order of Rem and and the record before us makes it perfectly clear that the distric t court’s order clearly [did] not reflect the typical nonjurisdicti onal determination involving a discretionary remand of supplementary o r pendent claims, venue, abstention, comity or the waiver of opportunity to challenge procedurally irregular removal. Instead, the order[] address[ed] key issues directly related to whether the district court could have exercised subject matter jurisdiction ov er the case[]–the presence of a federal question on the face of the p laintiffs’ complaint[] and/or the presence of a federal questi on in the form of a colorable federal . . . defense. Dalrymple , 145 F.3d at 1185. As such, we conclude that the district court’s Order of Remand falls squarely within the provisions of § 1447(c), and that § 1447(d) precludes us from reviewing that order on appeal. At oral argument, however, Lubar asserted that we s hould not apply the prohibitions of § 1447(d) in this case, arguing that principles of “law of the case” and waiver preclude us from dismissing her appeal. We address each of Lubar’s contentions in turn.3 The mandamus panel’s order denying states, in relev ant part, as follows:

The grounds provided by § 1447(c) are a defect in t he removal procedure or lack of jurisdiction, neither of which was the district court’s reason for its remand order in this case. Therefore, review is not barred [by § 1447(d)]

. In re Clemence Lubar , No. 00-1504, Order at 2 (10th Cir. Jan. 18, 2001) , App. at 173 (emphasis added). -7- Lubar’s first contention is that because the mandam us panel already addressed the discrete issue of appellate jurisdict ion in this case, basic “law of the case” principles preclude us from revisiting it on appeal. Although we recognize that the mandamus panel already decided that we cou ld exercise jurisdiction over Lubar’s appeal, this decision was based entirely onits erroneous finding that the district court’s remand order was not grounded in § 1447(c), 3 and we disagree with Lubar’s position that “law of the case” princi ples prevent us from revisiting the jurisdictional question. “‘[T]he law of the case doctrine posits that when acourt decides upon a rule of law, that decision should continue to gover n the same issues in subsequent stages in the same case.’” McIlravy v. Kerr-McGee Coal Corp. , 204 F.3d 1031, 1034 (10th Cir. 2000) (quoting United States v. Monsisvais , 946 F.2d 114, 115 (10th Cir. 1991)) (further quotations omitted). “L aw of the case rules have developed to maintain consistency and avoid reconsi deration of matters once decided during the course of a single continuing lawsuit,” 18 Wright, Miller &4 The court in Deanactually uses the term “res judicata,” but it is

nonetheless clear it is in fact applying “law of th e case” principles. -8- Cooper, Federal Practice & Procedure: Jurisdiction § 4478, at 788 (1981) (“Wright & Miller”). Such rules are commonly appli ed to prevent an appellate court from revisiting or reconsidering “matters res olved on a prior appeal,” and it is not uncommon for “appellate court . . . [to] adh ere[] to prior rulings as the law of the case, at times despite substantial reservati ons as to the correctness of the ruling.” Id. However, law of the case principles apply only to d ecisions on the actual merits. Wilmer v. Board of Cty. Comm’rs , 69 F.3d 406, 409 (10th Cir. 1995) (“Law of the case principles do not bar a district court from acting unless an appellate decision has issued on the merits of the claim sought to be precluded.”) (quotations omitted). See also Wright & Miller § 4435, at 329. Because orders denying a petition for mandamus are most frequentlydenied as a result of the special limitations inherent in the writ itself, an d not on the merits, such denials are not ordinarily given “law of the case” effect, and the parties are not precluded from raising the issue in a subsequent appeal. 4 United States v. Dean , 752 F.2d 535, 541 (11th Cir. 1985). “Law of the case” princ iples are typically applied only to those mandamus decisions actually deciding the case on the merits, United States v. Holland , No. 94-5234, 1995 WL 539589 at *1 (10th Cir. Sept . 11, 1995) (holding that “an appellate court’s denial of a man damus petition will not5 See also Kirshner v. Uniden Corp. of Am. , 842 F.2d 1074, 1078 (9th Cir.

1988); Dean , 752 F.2d at 541. -9- preclude further consideration of the issue raised therein under res judicata or law of the case, unless the denial was on the merits”), 5 or to those discrete issues that were actually adjudicated by the mandamus panel. Wilmer , 69 F.3d at 410 n. 3 (recognizing that “jurisdictional questions, like o ther issues, must actually be decided, explicitly or implicitly, before law of the case may be invoked). See also Acree v. Air Line Pilots Ass’n , 390 F.2d 199, 203 (5th Cir. 1968) (holding that even non-merit based decisions are “conclusive” as to those “matters actually adjudged”). In any event, law of the case principles are not ab solute. “Although courts are often eager to avoid reconsideration of questio ns once decided in the same proceeding, it is clear that all federal courts ret ain power to reconsider if they wish.” Wright & Miller § 4478, at 789. We have ro utinely recognized that the law of the case doctrine is “discretionary, not man datory,” and that the rule “‘merely expresses the practice of courts generallyto refuse to reopen what has been decided, not a limit on their power.’” Stifel, Nicolaus & Co., v. Woolsey &
Co. , 81 F.3d 1540, 1544 (10th Cir. 1996) (quoting Messenger v. Anderson , 225 U.S. 436, 444 (1912) (Holmes, J.)). See also Pittsburg & Midway Coal Mining Co. v. Watchman , 52 F.3d 1531, 1536 n. 4 (10th Cir. 1995). Issues such as “subject matter jurisdiction” or “appellate jurisdi ction” may be “particularly6 See also Wright & Miller § 4478, at 790 & n. 5 (“Most recen t decisions

suggest that the major grounds that justify reconsi deration involve an intervening change of controlling law, the availability of new evidence, or the need to correct a clear erroror prevent manifest injustice.”) (emphasis added). -10- suitable for reconsideration,” Wright & Miller § 44 78, at 799 & n. 32, and our ability to revisit prior jurisdictional determinati ons is particularly strong where the prior panel’s decision is found to be clearly e rroneous or contrary to the clear mandate of the law. Watchman , 52 F.3d at 1536 n. 4 (recognizing that “circumstances justifying a departure from law of t he case are narrow,” but noting that such departure is justified where the original decision was clearly erroneous) (quotation omitted). 6 Applying these basic “law of the case” principles, and in light of the strong legislative mandate absolutely precluding our revie w of remand orders issued on the grounds articulated in § 1447(c), we exercise o ur discretion to re-examine the mandamus panel’s prior jurisdictional determinationand revisit the jurisdictional question. In doing so, we conclude that the mandam us panel’s finding was clearly erroneous, and that the only reasonable reading of the district court’s order is that it remanded the case solely because it found that Kennedy’s claims were not pr eempted and that, as such, there was no federal subj ect matter jurisdiction. We find absolutely no evidence in the record before us to support the mandamus panel’s conclusion that the remand was based on con siderations other than subject matter jurisdiction. To the contrary, as indicated above, Kennedy’s motion for7 In her Petition for Writ of Mandamus, Lubar asserte d that appellate review

was proper in spite of § 1447(d) because the distri ct court failed to use a “‘good faith’ process” in making its remand determinations . Pet. for Writ of Mandamus at 7-8, App. at 157-58 (quoting Archuleta , 131 F.3d at 1362). This argument itself recognizes that the district court’s decisio n was based entirely on its perception that it lacked subject matter jurisdicti on over the case, since Archuleta itself involved a remand for lack of subject matterjurisdiction. Moreover, the argument is without merit and it appears that the m andamus panel did not accept or rely on it in making its jurisdictional determin ations. In Archuleta , we specifically held that § 1447(d) precludes us from reviewing a remand order where that order was basedon a district court’s finding that it lacked subject matter jurisdiction over the case, “even where the district court may have employed erroneous principles in con cluding that remand [was] required.” 131 F.3d at 1363. Although we recogniz ed that § 1447(d) does not necessarily preclude us from exercising jurisdictio n to review a remand order where the district court fails to act in “good fait h,” we also applied a very liberal and deferential standard of good faith, holding that a district court acts in “good faith” so long as its order is “based to a fair deg ree upon [its] finding that it lacked subject matter jurisdiction.” Id. (quotation omitted). As already discussed, after reviewing the record and the Orderof Remand in its entirety we conclude that the district court remanded based ent irelyon its finding that it lacked subject matter jurisdiction over Kennedy’s c laims, and even if we believed that the district court erred in its analysis, ther e is no evidence of “bad faith,” or that its decision to remand was not “fairly based” on its determination that it lacked subject matter jurisdiction. Thus, the very narrow exception articulated in Archuletahas no application in this case.

8 See In re Clemence Lubar , No. 00-1504, Order (10th Cir. Jan. 18, 2001), App. at 172-73 . -11- remand asserted only arguments based on the district court’s lack of fe deral subject matter jurisdiction, and no other ground fo r remand was asserted or considered below. 7Indeed, the mandamus panel’s order itself does no t provide any suggestion about what other grounds the distric t court may have had for its remand order, 8 and no such grounds appear anywhere in the record. The9 Lubar suggests that we are powerless to reconsiderthe mandamus panel’s

prior jurisdictional determinations because there i s no broad-based “jurisdictional exception” to the law of the case doctrine. Withou t deciding whether or not Lubar is correct, or whether or not the cases cited actually preclude the possibility of a jurisdictional exception in all cases, we simp ly point out that we do not rely on any such exception in this case. We rely only on the “clearly erroneous” exception, and the well recognized principle that application of “law of the case” doctrine is always discretionary, not mandatory. Relying on Burlington Northern & Santa Fe Ry. Co. v . Burton , 270 F.3d 942 (10th Cir. 2001), Lubar further suggests that “ law of the circuit” principles prevent us from revisiting the jurisdictional issue , asserting that we can overturn the previous panel’s jurisdictional decisions only by en banc consideration. However, the law of the circuit doctrine, as articu lated in Burlington , refers generally to our policy that prior circuit preceden t, derived from a published opinion on the merits , will not be overturned absent an en banc ruling of this court. Burlington , 270 F.3d at 947 (refusing to overturn this court’ s previous legal determinations in Union Pac. R.R. Co. v. Utah , 198 F.3d 1201 (10th Cir. 1999), and recognizing the general rule that we wil l not “overrule the judgment of another panel of this court absent en banc reconsid eration or a superceding contrary decision by the Supreme Court”). It does not prevent us from exercising our discretion to revisit a prior panel’s jurisdict ional determinations in the same case, particularly where the previous panel did notdecide the case on its actual merits, and its opinion was unpublished. This part icular case, involving an appellate panel’s review of a mandamus panel’s prio r jurisdictional determinations in an unpublished order, is much mor e akin to those cases where an appellate merits panel reviews the jurisdictiona l determinations of a prior motions panel than it is to cases where a subsequent appellate merits panel seeks to revisit the legal determinations articulated in a published opinion from a prior appellate merits panel. Cf. Stifel , 81 F.3d at 1544 (recognizing that law of the case principles are not applied as strictly where amerits panel seeks to revisit the decisions of a motions panel because “‘[d]ecisions by motions panels are summary in character, made often on a scanty record , and not entitled to the weight of a decision made after plenary submission’ ”) (quotation omitted); Hiivala v. Wood , 195 F.3d 1098, 1104 (9th Cir. 1999) (holding that“the ‘law of (continued...) -12- mandamus panel’s jurisdictional conclusion was clearly erroneous, and law of the case principles do not prevent us from dismissing this appeal. 99 (...continued)

the case’ doctrine leaves open the opportunity for a merits panel to reconsider jurisdictional issues as to which a motion panel de nied certification”); Bogard v. Wright , 159 F.3d 1060, 1062 (7th Cir. 1998) (holding thata prior panel’s denial of a motion to dismiss an appeal for want of appell ate jurisdiction is not conclusive and does not “preclude the merits panel from revisiting the jurisdictional issue”).

10 See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94-95 (1998) (holding that a court must always satisfy itself fi rst that it does in fact have jurisdiction before proceeding in any case, and that there is no such thing as “hypothetical jurisdiction”); Lopez v. Behles (In r e Amer. Ready Mix, Inc. ), 14 F.3d 1497, 1499 (10th Cir. 1994) (holding that appe llate court has independent duty to examine its own jurisdiction even where nei ther party consents and both are prepared to concede it). -13- Lubar’s second contention is that Kennedy affirmati vely waived the issue of jurisdiction and consented to our review by expr essly adopting the mandamus panel’s holding that the district court’s Order of Remand was appealable “under 28 U.S.C. § 1291.” Br. of Pl.-Appellee at 1. Agai n, we disagree with Lubar’s contention. Although Lubar is correct that we ordinarily do notconsider matters not affirmatively raised by the parties in their opening briefs, State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n. 7 (10th Cir. 1994), this gene ral rule does not apply to jurisdictional questions. Lyons v. Jefferson Bank & Tr. , 994 F.2d 716, 721 (10th Cir. 1993) (noting that the court will ad dress new issues on appeal where questions of the court’s jurisdiction are rai sed). We have routinely recognized our ability to raise the question of appellate jurisdiction sua sponte , 10 and parties cannot circumvent constitutional and st atutory limitations to create11 See also Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541

(1986) (“Federal courts are not courts of general j urisdiction; they have onlythe power that is authorized by Article III of the Cons titution and the statutes enacted by Congress pursuant thereto. For that reason, eve ry federal appellate court has a special obligation to satisfy itself not only of it s own jurisdiction, but also that of the lower courts in a cause under review, even thou gh the parties are prepared to concede it.”) (emphasis added and internal citation s and quotations omitted). -14- jurisdiction where it does not otherwise exist. Insurance Corp. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702 (1982) (holding that “no actionof the parties can confer subject-matter jurisdiction upona federal court,” and that principles of wavier and estoppel do not apply). See also Stubblefield v. Windsor Cap. Grp. , 74 F.3d 990, 993 n. 3 (10th Cir. 1996) (holding t hat a party’s concession of jurisdiction has no legal effect “bec ause where our jurisdiction is not authorized by statute, it cannot be manufacture d by consent”). As a federal court of appeals, we are a court of li mited jurisdiction and must refrain from exercising jurisdiction unless we are certain that such jurisdiction has been granted us by Congress. See Adams v. Reliance Standard Life Ins. Co. , 225 F.3d 1179, 1182 (10th Cir. 2000) (“In light o f the limited subject matter jurisdiction granted to the federal courts by Congress, we have a duty to satisfy ourselves that jurisdiction is appropriate.”) 11 Likewise, we are absolutely prohibited from exercising jurisdiction where it is expressly forbidden by Congress. See Basso v. Utah Pwr. & Lt. Co. , 495 F.2d 906, 909 (10th Cir.1974) (“A court lacking jurisdiction cannot render judgment but must dismiss12 See also Tahy v. United States , No. 98-4167, 1999 WL 651388 at *2 n. 3

(10th Cir. Aug. 26, 1999) (unpublished) (recognizin g that “‘the federal courts are courts of limited jurisdiction whose remedial power s do not extend beyond the granting of relief expressly authorized by Congress ’”) (quoting Bush v. Lucas , 462 U.S. 367, 373 (1983)).

13 At oral argument, Lubar argued that if we decide no t to exercise jurisdiction over orders of remand in cases such as this, our review of district court pre-emption determinations will be limited to only those cases where (i) motions for remand are denied, (ii) a district court remands for reasons other than those articulated in § 1447(c), or (iii) the distri ct court exercises jurisdiction and then subsequently dismisses a plaintiff’s state lawclaims. Lubar is absolutely correct; our previous cases have reviewed pre-empti on determinations onlyin those limited circumstances. See , e.g. , Steinbach v. Dillon Cos. , 253 F.3d 538, 539 (10th Cir. 2001) (reviewing pre-emption determi nations where district court exercised jurisdiction and dismissed plaintiff’s st ate law claims); Garley v. Sandia Corp. , 236 F.3d 1200, 1203 (10th Cir. 2001) (reviewing p re-emption determinations where district court denied plaintif f’s motion for remand and granted defendant’s motion to dismiss); Albertsons , 982 F.2d at 1479-80 (review of pre-emption determinations “permissible because the district court did not remand on the basis of a defect in removal procedur e or for lack of subject matter jurisdiction,” but as an “exercise of its discretio n” to dismiss pendent state claims after it exercised jurisdiction and dismissed all f ederal claims). Nonetheless, we cannot ignore Congress’ clear mandate, and must leave it to that body to correct any potential problems or anomalies inherent in the statutory schemes they have created. -15- the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking .”) (emphasis added). 12 Section 1447(d) absolutely forbids us from reviewing the district court’s Order of Rem and in this case, and we cannot rely on principles of waiver to create appel late jurisdiction where it simply does not exist. Based on the foregoing, we hold that we lack jurisd iction to review the district court’s Order of Remand. 13 Accordingly, this appeal is DISMISSED.