PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: BLACKWATER SECURITY 

CONSULTING, LLC, a Delaware

Limited Liability Company;

BLACKWATER LODGE AND TRAINING  No. 05-1949

CENTER, INCORPORATED, a Delaware

Corporation,

Petitioners. 

IN RE: JUSTIN L. MCQUOWN, 

 No. 05-1992 Petitioner. 
RICHARD P. NORDAN, as Ancillary 

Administrator for the separate

Estates of Stephen S. Helvenston,

Mike R. Teague, Jerko Gerald

Zovko and Wesley J.K. Batalona,

Plaintiff-Appellee,

and

ESTATE OF STEPHEN S. HELVENSTON;

ESTATE OF MIKE R. TEAGUE;

ESTATE OF JERKO GERALD ZOVKO;

ESTATE OF WESLEY J.K. BATALONA,

Plaintiffs,

v.

BLACKWATER SECURITY CONSULTING,

LLC, a Delaware Limited Liability  No. 05-2033 Company; BLACKWATER LODGE AND

TRAINING CENTER, INCORPORATED, a

Delaware Corporation,

Defendants-Appellants,

and

JUSTIN L. MCQUOWN, an individual;

THOMAS POWELL,

Defendants.

PROFESSIONAL SERVICES COUNCIL;

INTERNATIONAL PEACE OPERATIONS

ASSOCIATION; AMERICAN

INTERNATIONAL GROUP,

INCORPORATED,

Amici Supporting Appellants. 

2 IN RE: BLACKWATER SECURITY CONSULTING
RICHARD P. NORDAN, as Ancillary 

Administrator for the separate

Estates of Stephen S. Helvenston,

Mike R. Teague, Jerko Gerald

Zovko and Wesley J.K. Batalona,

Plaintiff-Appellee,

and

ESTATE OF STEPHEN S. HELVENSTON;

ESTATE OF MIKE R. TEAGUE;

ESTATE OF JERKO GERALD ZOVKO;

ESTATE OF WESLEY J.K. BATALONA,

Plaintiffs,

v.

JUSTIN L. MCQUOWN, an individual,

Defendant-Appellant,  No. 05-2034

and

BLACKWATER SECURITY CONSULTING,

LLC, a Delaware Limited Liability

Company; BLACKWATER LODGE AND

TRAINING CENTER, INCORPORATED, a

Delaware Corporation; THOMAS

POWELL,

Defendants.

PROFESSIONAL SERVICES COUNCIL;

INTERNATIONAL PEACE OPERATIONS

ASSOCIATION; AMERICAN

INTERNATIONAL GROUP,

INCORPORATED,

Amici Supporting Appellants. 

IN RE: BLACKWATER SECURITY CONSULTING 3
Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Louise W. Flanagan, Chief District Judge.

(CA-05-48-5; CA-05-48-5-FL)

Argued: March 14, 2006

Decided: August 24, 2006

Before SHEDD and DUNCAN, Circuit Judges, and

James P. JONES, Chief United States District Judge

for the Western District of Virginia, sitting by designation.

Appeal dismissed; petition for writ of mandamus denied; motion to

strike denied as moot by published opinion. Judge Duncan wrote the

opinion, in which Judge Shedd and Judge Jones joined. 

COUNSEL

ARGUED: C. Allen Foster, GREENBERG TRAURIG, L.L.P.,

Washington, D.C., for Petitioners/Appellants. Marc Phillip Miles,

CALLAHAN & BLAINE, A.P.L.C., Santa Ana, California, for

Appellee. ON BRIEF: Michael P. Socarras, Joe R. Reeder, GREENBERG TRAURIG, L.L.P., Washington, D.C., Kirk G. Warner, Mark

A. Ash, SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL

& JERNIGAN, Raleigh, North Carolina, for Blackwater Security

Consulting, L.L.C., a Delaware Limited Liability Company, and

Blackwater Lodge and Training Center, Incorporated, a Delaware

Corporation; William C. Crenshaw, Ralph J. Caccia, Don R.

Berthiaume, POWELL & GOLDSTEIN, L.L.P., Washington, D.C.,

Patricia L. Holland, Rachel Esposito, CRANFILL, SUMNER &

HARTZOG, L.L.P., Raleigh, North Carolina, for Justin L. McQuown.

Daniel J. Callahan, Brian J. McCormack, CALLAHAN & BLAINE,

A.P.L.C., Santa Ana, California, David F. Kirby, William B. Bystrynski, KIRBY & HOLT, L.L.P., Raleigh, North Carolina, for Richard

P. Nordan, as Ancillary Administrator for the separate Estates of Ste4 IN RE: BLACKWATER SECURITY CONSULTING
phen S. Helvenston, Mike R. Teague, Jerko Gerald Zovko and Wesley J. K. Batalona. David C. Hammond, Amy E. Laderberg,

CROWELL & MORING, L.L.P., Washington, D.C., for Professional

Services Council and International Peace Operations Association,

Amici Supporting Appellants. Keith L. Flicker, FLICKER, GARELICK & ASSOCIATES, L.L.P., New York, New York, for American

International Group, Incorporated, Amicus Supporting Appellants. 

OPINION

DUNCAN, Circuit Judge: 

This appeal and petition for writ of mandamus require us to consider the extent to which we can review a district court order remanding a case to state court for lack of subject matter jurisdiction.

Concluding that the limited exceptions to the congressional proscription of our ability to review such orders are not applicable here, we

dismiss the appeal for lack of jurisdiction and decline to issue a writ

of mandamus. 

I.

Stephen S. Helvenston, Mike R. Teague, Jerko Gerald Zovko, and

Wesley J.K. Batalona (collectively, "decedents") entered into independent contractor service agreements with Blackwater Security Consulting, L.L.C., and Blackwater Lodge and Training Center, Inc.,

(collectively, "Blackwater") to provide services in support of Blackwater’s contracts with third parties in need of security or logistical

support. Blackwater assigned the decedents to support its venture with

Regency Hotel and Hospital Company ("Regency") to provide security to ESS Support Services Worldwide, Eurest Support Services

(Cyprus) International, Ltd. ("ESS"). ESS had an agreement to provide catering, build, and design support to the defense contractor firm

Kellogg, Brown & Root, which, in turn, had arranged with the United

States Armed Forces to provide services in support of its operations

in Iraq. 

According to the complaint, at the time the decedents entered into

the independent contractor service agreements on or about March 25,

IN RE: BLACKWATER SECURITY CONSULTING 5
2004, Blackwater represented that certain precautionary measures

would be taken with respect to the performance of their security functions in Iraq. For example, they were told that each mission would be

handled by a team of no fewer than six members, including a driver,

navigator, and rear gunner, and would be performed in armored vehicles; they would have at least twenty-one days prior to the start of a

mission to become familiar with the area and routes to be traveled;

and they would have an opportunity to do a pre-trip inspection of their

anticipated route. 

Instead, the complaint alleges, Blackwater failed to provide the

decedents with the armored vehicles, equipment, personnel, weapons,

maps, and other information that it had promised, or with the necessary lead time in which to familiarize themselves with the area. On

March 30, 2004, the decedents’ supervisor, Justin McQuown, directed

them to escort three ESS flatbed trucks carrying food supplies to a

United States Army base known as Camp Ridgeway. Lacking the

necessary personnel and logistical support, the decedents ultimately

became lost in the city of Fallujah. Armed insurgents ambushed the

convoy; murdered the decedents; and beat, burned, and dismembered

their remains. Two of the mutilated bodies were hung from a bridge.

Richard Nordan, in his capacity as administrator for the decedents’

estates, sued Blackwater and McQuown (hereinafter referred to collectively as "Blackwater") in the Superior Court of Wake County,

North Carolina, alleging causes of action for wrongful death and

fraud under North Carolina tort law. Blackwater removed Nordan’s

action to federal district court. It asserted that 28 U.S.C. § 1441(a)

(2000) permitted removal both because the Defense Base Act

("DBA"), 42 U.S.C. §§ 1651-1654 (2000), completely preempted

Nordan’s state-law claims, and because the issues in the case presented unique federal interests sufficient to create a federal question.

Once in federal court, Blackwater moved to dismiss the case, arguing

that the district court lacked subject matter jurisdiction because the

DBA covered Nordan’s claims and, therefore, that Nordan could litigate his claims only before the Department of Labor, which decides

DBA claims in the first instance. 

The district court first considered whether Blackwater had met its

burden of establishing federal removal jurisdiction. Nordan v. Black6 IN RE: BLACKWATER SECURITY CONSULTING
water Sec. Consulting, 382 F.Supp.2d 801, 806 (E.D.N.C. 2005). In

concluding that Blackwater had not met this burden, the district court

rejected both of Blackwater’s asserted bases for removal jurisdiction.

The court reasoned that, because the DBA grants the Secretary of

Labor exclusive original jurisdiction over DBA claims, the statute

does not completely preempt state-law claims; the hallmark of complete preemption, the district court concluded, is the presence of original jurisdiction over the matter in federal district court. Id. at 807-10

(citing Lontz v. Tharp, 413 F.3d 435, 442-43 (4th Cir. 2005)). Further,

the court determined that Blackwater’s assertion of removal jurisdiction by way of a unique federal interest in the adjudication of Nordan’s claims "assume[d] the very conclusion which [the] court

lack[ed] jurisdiction to reach, namely that the decedents in this case

are covered as employees under the DBA." Id. at 813. 

Finding no basis for removal, the district court concluded that it

lacked subject matter jurisdiction and, citing 28 U.S.C. § 1447(c)

(2000),1 determined that it must remand the case. Nordan, 382

F.Supp.2d at 813-14. Although Blackwater encouraged the district

court to remedy its lack of jurisdiction by dismissing the case rather

than remanding it, the district court further concluded that it lacked

the authority to dismiss. The court reasoned that federal district courts

play no role in the adjudication or review of DBA claims2 and, therefore, that it had no jurisdiction to decide whether the DBA applied to

Nordan’s claims. Id. at 814. The district court thus remanded the case

to state court without reaching the merits of Blackwater’s motion to

dismiss. 

1Section 1447(c) provides: "If at any time before final judgment it

appears that the district court lacks subject matter jurisdiction, the case

shall be remanded. . . . The State court may thereupon proceed with such

case." 

2The district court incorrectly concluded that the federal district courts

play no role in the adjudication of DBA claims. The federal district

courts, followed by the federal courts of appeals and the United States

Supreme Court, review DBA claims after they have been initially adjudicated in the Department of Labor. See 42 U.S.C. § 1653(b) (2000); see

also Lee v. Boeing Co., Inc., 123 F.3d 801, 803-05 (4th Cir. 1997)

(describing agency and judicial review of DBA claims). 

IN RE: BLACKWATER SECURITY CONSULTING 7
Blackwater now seeks review, via both an ordinary appeal and a

petition for a writ of mandamus. For the reasons that follow, we hold

that we lack jurisdiction to hear the appeal and decline to issue a writ

of mandamus.3

II.

We first address the issue of our authority to review this case by

appeal. Blackwater faces a formidable hurdle in this regard because

Congress has severely circumscribed federal appellate review of certain orders remanding a case to the state court from which it was

removed. We begin our analysis with a review of the body of law

related to and developed from that jurisdictional circumscription. We

then address whether the principles inherent in that body of law allow

us to exercise appellate jurisdiction in this case. 

A.

1.

The legal principles that govern appellate jurisdiction in this case

derive from Congress’s limitation on our authority to review remand

orders. A district court order "remanding a case to the State court

from which it was removed is not reviewable on appeal or otherwise."4

28 U.S.C. § 1447(d) (2000). This limitation on review applies even

if the remand order is "manifestly, inarguably erroneous." Mangold v.

Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir. 1996) (Phillips, J.,

specially concurring and delivering the opinion of the court on the

issue of subject matter jurisdiction) (citing Gravitt v. Sw. Bell Tel.

3Nordan moved to strike a portion of the record that Blackwater submitted on appeal. Because we dismiss the appeal and the petition for lack

of jurisdiction, we deny this motion as moot. 

4The full text of § 1447(d) is as follows: 

An order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise, except that an

order remanding a case to the State court from which it was

removed pursuant to section 1443 of this title shall be reviewable

by appeal or otherwise. 

8 IN RE: BLACKWATER SECURITY CONSULTING
Co., 430 U.S. 723 (1977) (per curiam)). If the plain language of the

statute were all that we had to consult, we might not tarry long with

the notion that we could entertain a review of the merits of this case.

Several cases, however, provide for limited exceptions to the reach of

§ 1447(d).5

First, the Supreme Court has interpreted § 1447(d) to prohibit

review only when the order of remand was based upon § 1447(c),

which requires remand when the district court determines that it lacks

subject matter jurisdiction. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346 (1976) ("[O]nly remand orders issued under

§ 1447(c) and invoking the grounds specified therein . . . are immune

from review under § 1447(d)."), overruled on other grounds by

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15 (1996). 

Second, § 1447(d) does not prohibit review of a collateral decision

that is severable from the remand order. See City of Waco v. U.S. Fid.

& Guar. Co., 293 U.S. 140, 143 (1934) (holding § 1447(d) inapplicable to the portion of a remand order that dismissed a cross-claim

because the dismissal "in logic and in fact . . . preceded [the order]

of remand and was made by the District Court while it had control of

the cause . . . . [A]nd, if not reversed or set aside, [the dismissal] is

conclusive upon the petitioner"); see also Nutter v. Monongahela

Power Co., 4 F.3d 319, 321 (4th Cir. 1993) ("[W]here portions of a

remand order are ‘in logic and in fact’ severable from the court’s

determinations regarding remand, we may review the severable portions of the order on appeal.") (citing Waco, 293 U.S. at 143). 

Finally, § 1447(d) does not prohibit review of a remand order if

5

In addition to the judicially developed exceptions upon which we

focus today, § 1447(d) itself permits review of a remand order in a case

removed to federal court pursuant to 28 U.S.C. § 1443 (2000), which

concerns removal of state civil and criminal actions involving civil rights

claims. In addition, a separate statute allows review of remand orders in

cases concerning certain land restrictions applicable to the Five Civilized

Tribes of Oklahoma. See Act of Aug. 4, 1947, ch. 458, sec. 3(c), 61 Stat.

731, 732, 25 U.S.C. § 355 note (2000); see also 28 U.S.C. § 1447 note

(2000) (Exception to Subsection (d)). Neither statutory provision is at

issue in this case. 

IN RE: BLACKWATER SECURITY CONSULTING 9
that order exceeds the scope of the district court’s authority. See

Thermtron, 423 U.S. at 351 (holding that § 1447(d) does not bar

review of a remand order based on "grounds that [the district court]

had no authority to consider" because such action "exceed[s] [the

court’s] statutorily defined power"); Borneman v. United States, 213

F.3d 819, 826 (4th Cir. 2000) ("§ 1447(d) prohibits review of district

courts’ determinations of whether jurisdictional statutes have been

satisfied, not review of determinations where district courts exceed

their jurisdictional authority") (citing Thermtron, 423 U.S. at 351).

The issue before us is whether one of these limited exceptions to the

broad jurisdictional proscription of § 1447(d) applies to the district

court’s actions in this case. 

2.

In order to determine whether an exception to § 1447(d) allows us

to exercise appellate jurisdiction in this case, we draw from a related

body of statutory text and jurisprudence governing removal of cases

from state court to federal district court. Except as federal law may

otherwise provide, when a defendant removes a state civil action to

federal district court, federal removal jurisdiction exists if the action

is one "of which the district courts of the United States have original

jurisdiction." § 1441(a). Among other categories of cases, the federal

district courts possess original jurisdiction over civil cases raising federal questions, which are "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (2000).

Removal jurisdiction is not a favored construction; we construe it

strictly in light of the federalism concerns inherent in that form of federal jurisdiction. See Lontz, 413 F.3d at 440. The party seeking

removal bears the burden of demonstrating that removal jurisdiction

is proper. See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d

148, 151 (4th Cir. 1994). 

Under what has become known as the well-pleaded complaint rule,

§ 1331 federal question jurisdiction is limited to actions in which the

plaintiff’s well-pleaded complaint raises an issue of federal law;

actions in which defendants merely claim a substantive federal

defense to a state-law claim do not raise a federal question. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908). In

other words, a defendant may not defend his way into federal court

10 IN RE: BLACKWATER SECURITY CONSULTING
because a federal defense does not create a federal question under

§ 1331. 

The doctrine of complete preemption provides a corollary to the

well-pleaded complaint rule. This doctrine recognizes that some federal laws evince such a strong federal interest that, when they apply

to the facts underpinning the plaintiff’s state-law claim, they convert

that claim into one arising under federal law. See, e.g., Caterpillar,

Inc. v. Williams, 482 U.S. 386, 393 (1987). Because complete preemption transforms a state-law claim into one arising under federal

law, "the well pleaded complaint rule is satisfied" even though the

complainant never intended to raise an issue of federal law. Lontz,

413 F.3d at 441. However, "the sine qua non of complete preemption

is a preexisting federal cause of action that can be brought in the district courts. . . . Congress’s allocation of authority to an agency and

away from district courts defeats a complete preemption claim . . . ."

Id. at 442-43. The doctrine of complete preemption, therefore, concerns itself with the uniquely jurisdictional inquiry into whether a purportedly state-law claim actually arises under federal law so as to

create federal jurisdiction over that claim. 

By contrast, under the principles of "ordinary" preemption, some

federal laws may simply provide either a substantive defense to a

plaintiff’s state-law claims or a right to adjudication of those claims

in a federal administrative forum or according to a federal scheme.

See generally id. at 440. "Complete preemption is a jurisdictional

doctrine, while ordinary preemption simply declares the primacy of

federal law, regardless of the forum or the claim." Id. (internal quotation marks and citation omitted). The presence of ordinary federal

preemption thus does not provide a basis for federal question jurisdiction, and, in a case removed from state court on the basis of federal

question jurisdiction, is relevant only after the district court has determined that removal was proper and that it has subject matter jurisdiction over the case. 

B.

We now turn our attention to the district court’s actions in this case

to determine whether § 1447(d) removes our ability to hear it. 

IN RE: BLACKWATER SECURITY CONSULTING 11
1.

As we have explained, § 1447(d) bars appellate review of a remand

order only if that order was issued pursuant to § 1447(c)’s instruction

to remand removed cases over which the district court possesses no

subject matter jurisdiction. See Thermtron, 423 U.S. at 346. However,

a district court’s mere citation to § 1447(c) is insufficient to bring a

remand order within the purview of that provision. We must instead

look to the substantive reasoning behind the order to determine

whether it was issued based upon the district court’s perception that

it lacked subject matter jurisdiction. See, e.g., Borneman, 213 F.3d at

824-25 ("Whether a district court’s remand order is reviewable under

§ 1447(d) is not determined by whether the order explicitly cites

§ 1447(c) or not. The bar of § 1447(d) applies to any order invoking

substantively one of the grounds specified in § 1447(c).") (internal

citation omitted). 

The district court’s remand order in this case clearly falls within

the ambit of § 1447(c)’s requirement of remand in the absence of subject matter jurisdiction. The court first concluded that the DBA did

not completely preempt overlapping state law and thus did not create

a federal question. Nordan, 382 F.Supp.2d at 807-11. It then reasoned

that Blackwater’s assertion of a unique federal interest in the adjudication of Nordan’s claims likewise did not confer federal removal

jurisdiction. Id. at 811-13. The district court cited the untenability of

these two suggested jurisdictional bases as the source of its decision

to remand the case. "[T]his court lacks subject matter jurisdiction over

this cause of action . . . . [W]here the court finds no basis for subject

matter jurisdiction, § 1447(c) compels the court to remand this action

to state court. . . . Accordingly . . . remand, rather than dismissal for

lack of subject matter jurisdiction, is proper." Id. at 813-14. 

To conclude that the remand order was issued pursuant to

§ 1447(c), we need not delve into whether the district court was correct to hold that it lacked subject matter jurisdiction over the removed

action. Rather, an order is issued pursuant to section § 1447(c) if the

district court perceived that it was without jurisdiction over the cause.

See, e.g., Mangold, 77 F.3d at 1450 (holding that courts must "look

past contextually ambiguous allusions and even specific citations to

§ 1447(c) to determine by independent review of the record the actual

12 IN RE: BLACKWATER SECURITY CONSULTING
grounds or basis upon which the district court considered it was

empowered to remand"). Furthermore, as we have noted, § 1447(d)’s

jurisdictional bar applies with equal force to unassailably correct and

"manifestly, inarguably erroneous" orders of remand. Id. Because the

reasoning behind the district court’s remand order in this case indicates the court’s belief that it lacked subject matter jurisdiction upon

removal, we conclude that the remand order was issued pursuant to

§ 1447(c) and, consequently, that § 1447(d) prohibits our review of

that order. 

2.

Having determined that the order before us was, indeed, predicated

upon § 1447(c), and therefore within the purview of § 1447(d), we

turn now to a consideration of whether one of the other judicially created exceptions to § 1447(d) applies. The severable order exception

to § 1447(d) set forth in Waco allows appellate review of certain distinct component decisions that may be issued as part of a remand

order. We first discuss the contours of the Waco severable order

exception and then consider whether Waco permits review of two

constituent aspects of the district court’s remand order. 

a.

The Supreme Court in Waco construed § 1447(d) not to prohibit

categorically appeals of certain orders in cases that had been

remanded to state court. In that case, the district court dismissed the

claim upon which the court’s removal jurisdiction had been based; it

then remanded the case to the state court because, once the claim was

no longer part of the case, no basis for federal jurisdiction existed.

The Supreme Court held that § 1447(d)’s prohibition of appellate

review did not apply to the order dismissing the claim, even though

it clearly applied to the remand order itself. Waco, 293 U.S. at 143-

44. The order dismissing the claim was appealable, the Court reasoned, because "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 petitioner." Id.

at 143. The Court concluded that, though action on the order of dismissal "cannot affect the order of remand . . . it will at least, if the

IN RE: BLACKWATER SECURITY CONSULTING 13
dismissal of the petitioner’s complaint was erroneous, remit the entire

controversy . . . to the state court . . . ." Id. at 143-44. 

This circuit has construed Waco to require, at a minimum, that the

purportedly reviewable order have a conclusive effect upon the parties’ substantive rights. See Nutter, 4 F.3d at 321. We have interpreted

this conclusiveness requirement to mean that the challenged order

must have a preclusive effect in subsequent proceedings. See id.

As the Supreme Court recently reiterated, Waco also requires that

the reviewable decision be able to be "disaggregated" from the

remand order itself because "the order of remand cannot be affected

notwithstanding any reversal of a separate order." Kircher v. Putnam

Funds Trust, 126 S. Ct. 2145, 2156 n.13 (2006) (internal quotation

marks and citation omitted). Similarly, other circuits have had occasion to recognize as a key component of Waco the requirement that

the reviewable decision be logically and factually precedent to the

remand order. See, e.g., Carlson v. Arrowhead Concrete Works, Inc.,

445 F.3d 1046, 1052 (8th Cir. 2006) (holding that Waco requires that

the reviewed decision be both conclusive on the parties and logically

and factually precedent to the remand order); Hernandez v. Seminole

County, 334 F.3d 1233, 1241 (11th Cir. 2003) (construing Waco to

require the challenged decision to be both conclusive on the parties

and logically and factually precedent to the remand order); Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95, 99 (1st Cir. 2001) (holding

Waco applicable to a decision that was not "inextricably intertwined

with" or essential to the remand order); Carr v. Am. Red Cross, 17

F.3d 671, 675 (3d Cir. 1994) (explaining that Waco requires the

reviewed portion of a remand order to be "both logically precedent to,

and separable from, the remand decision" and measuring the severability of an issue by whether the district court reached it as part of

an inquiry into the existence of subject matter jurisdiction); see also

Kimbro v. Velten, 30 F.3d 1501, 1503 (D.C. Cir. 1994) (concluding

that Waco applies to decisions that "logically precede[ ] the question

of remand") (internal quotation marks and citation omitted). Our precedent also suggests that Waco applies to orders that are logically and

factually "antecedent" to the order of remand. See Borneman, 213

F.3d at 825 (holding § 1447(d) inapplicable to two "antecedent components of the district court’s remand order"). We therefore conclude

14 IN RE: BLACKWATER SECURITY CONSULTING
that logical and factual severability, along with conclusiveness, are

central requirements of Waco’s exception to § 1447(d). 

b.

i.

Blackwater argues that Waco permits appellate review of the district court’s choice of remedy for its lack of removal jurisdiction. Specifically, the district court denied as moot Blackwater’s motion to

dismiss for lack of jurisdiction, choosing instead to cure its lack of

removal jurisdiction by remanding Nordan’s claims to state court.

According to Blackwater, the district court’s denial of its motion to

dismiss is reviewable because it conclusively decided Blackwater’s

assertion that the DBA and the Constitution’s foreign affairs and war

powers clauses convey upon it an immunity from suit in either state

or federal court. This position relies heavily on our decision in Shives

v. CSX Transp., Inc. (In re CSX Transp., Inc.), 151 F.3d. 164 (4th Cir.

1998). For the reasons that follow, its reliance is misplaced. 

Shives concerned a railroad employee’s action in state court under

the Federal Employers’ Liability Act ("FELA"), 45 U.S.C.A. §§ 51-

60 (West 1986 & Supp. 2006), against his employer for injuries that

he had sustained while unloading a train at a marine terminal. The

employer removed the case to federal court, claiming that the case

raised a federal question. The employer then moved to dismiss the

case, arguing that, because the employee had been injured while performing maritime work, he could receive compensation for that injury

only by filing a claim with the United States Department of Labor

under the Longshore and Harbor Workers Compensation Act

("LHWCA"), 33 U.S.C.A. §§ 901-950 (West 2001 & Supp. 2006).

Because 28 U.S.C. § 1445(a) (2000) prohibited removal of FELA

claims that had been initiated in state court, the district court first had

to determine whether the FELA or the LHWCA covered the employee’s claims. The district court concluded that the employee had not

been engaged in maritime work and, therefore, that the LHWCA did

not apply. Because the LHWCA did not apply, the court concluded,

the claim had been properly filed under the FELA. The district court

then remanded the case to state court because § 1445(a) prohibited

removal of the case. 

IN RE: BLACKWATER SECURITY CONSULTING 15
"[W]ith some delicacy," we exercised appellate jurisdiction of the

employer’s appeal of the remand order. Shives, 151 F.3d at 168. We

first concluded that the remand was not based on the district court’s

perceived lack of subject matter jurisdiction and, therefore, that it had

not been issued pursuant to § 1447(c). Id. at 167. The district court,

we reasoned, had not perceived that it lacked subject matter jurisdiction over the employee’s FELA claim because federal and state courts

have concurrent original jurisdiction over such claims. Id. Instead, it

had remanded the case because § 1445(a) prohibited removal in that

instance. Id.

Alternatively, we concluded that the district court’s decision concerning the LHWCA’s applicability to the employee’s claim was a

"conceptual antecedent" to the order of remand. Id. We noted that letting the remand order stand would

commit to the state courts the decision of whether the

LHWCA provided coverage to the employee. To follow that

course would thus deprive the federal courts of their proper

role in resolving this important issue and would circumvent

Congress’ intent that LHWCA coverage issues be resolved

in the first instance by the Department of Labor and ultimately in the federal courts of appeals. 

Id.

The procedural posture of this case distinguishes it from Shives in

two critical particulars. First, as already noted, in Shives we exercised

appellate jurisdiction over an appeal of a remand order that we somewhat hesitantly construed to be predicated upon § 1445(a)’s prohibition against removal of state-filed FELA claims, not upon § 1447(c)’s

mandate to remand in the absence of subject matter jurisdiction. See

id. at 167-68. Because the Supreme Court has clarified that

§ 1447(d)’s restriction on review applies only to remand orders made

pursuant to § 1447(c), see Thermtron, 423 U.S. at 346, we concluded

that § 1447(d) did not prohibit appellate jurisdiction, see Shives, 151

F.3d at 167. In other words, appellate jurisdiction existed in Shives

because the district court’s order did not rest upon lack of subject

matter jurisdiction, the ground set forth in § 1447(c).6 By contrast, as

6We drew a similar conclusion in Mangold, 77 F.3d at 1452, a decision

that Blackwater misguidedly cites to ameliorate its jurisdictional position

16 IN RE: BLACKWATER SECURITY CONSULTING
we have explained, the district court remanded this case under

§ 1447(c) for lack of subject matter jurisdiction. 

The second distinction that defeats Blackwater’s reliance on Shives

to support appellate jurisdiction in this case is the existence in Shives

of a "conceptual antecedent" to the district court’s remand order. As

we have noted, a key component of Waco’s collateral order exception

is that the challenged order "in logic and in fact . . . preceded that of

remand." Waco, 293 U.S. at 143. The district court in Shives faced,

on the one hand, § 1445(a), which prohibited removal of state-filed

FELA claims, and, on the other hand, a notice of removal claiming

that the plaintiff’s claim was not brought under the FELA but was

instead preempted by the LHWCA. We concluded in Shives that the

district court had remanded the case because § 1445(a) prohibited

removal of FELA claims. See 151 F.3d at 167. In order to reach its

conclusion that § 1445(a) prohibited removal, the district court in

Shives had to determine whether the LHWCA applied to the employee’s claim. If the LHWCA was applicable, it would erase § 1445(a)’s

protection of state-filed FELA claims from removal. Shives thus presented the court of appeals with an LHWCA coverage decision by the

district court, a distinct determination that was not entangled with the

jurisdictional analysis supporting the remand order. Shives itself does

not cite to Waco or explain how the LHWCA coverage decision at

issue in that case satisfied Waco’s severability standard. It is nevertheless clear that we took appellate jurisdiction in Shives because the

district court made a decision that was a "conceptual antecedent" to

the remand order. That conceptual antecedent took the form of the

district court’s substantive ruling that, because the plaintiff had not

been engaged in maritime employment, the application of the

LHWCA had not been triggered in that case. See id.

No such conceptual antecedent exists here. The district court made

no DBA coverage decision that might form the basis of our review.

In Shives, the district court reached the issue of the LHWCA’s appliin this case. In that case, we concluded that § 1447(d) did not prohibit

appellate review of the district court’s remand order because that order

did not arise from the district court’s perception that it lacked subject

matter jurisdiction, and thus was not issued pursuant to § 1447(c). Id.

IN RE: BLACKWATER SECURITY CONSULTING 17
cation to the plaintiff’s claim, but not because it needed help deciding

how to remedy its lack of removal jurisdiction. Rather, a determination of LHWCA coverage in Shives was a necessary step in the district court’s inquiry into the permissibility of removal. Here, the

district court appropriately did not decide whether the DBA applied

to Nordan’s claims because such an inquiry was both unnecessary to

its jurisdictional analysis and unreachable on the merits once the court

had determined that removal jurisdiction was absent.7

The fact that the district court’s order made no determination of

DBA coverage has significance beyond serving to distinguish the

facts before us from those in Shives. It also supports our conclusion

that the denial of Blackwater’s motion to dismiss was not conclusive

upon its substantive rights. We note again the caution in Nutter that,

for the purpose of determining whether an order meets the criteria of

Waco, "[a]t a minimum, the challenged portion of the order must

affect the parties’ substantive rights" by having a preclusive effect in

subsequent proceedings. Nutter, 4 F.3d at 321. Here, the district court

made no determination with respect to whether the DBA covered

Nordan’s claims. One of the first principles of preclusion, however,

is that the precluding order either actually determined the issue sought

to be precluded (in the case of issue preclusion) or issued a final judgment on the merits (in the case of claim preclusion). See, e.g., Martin

v. Am. Bancorporation Ret. Plan, 407 F.3d 643, 650, 653 (4th Cir.

2005). Therefore, neither the district court’s refusal to decide whether

the DBA applies to Nordan’s claims, nor its concurrent conclusion

that it lacked jurisdiction to reach the merits of the case will have any

preclusive effect on Blackwater’s ability to assert in state court its

arguments concerning ordinary federal preemption.

We further note that remanding despite a potential federal defense

does not hamstring the litigation of that defense in state court. In

7Another case upon which Blackwater significantly relies is also distinguishable on this basis. In Jamison v. Wiley, 14 F.3d 222, 233 (4th Cir.

1994), we concluded that Waco’s exception permitted review of the district court’s refusal to substitute the United States as a defendant. We so

concluded because the district court decided to deny substitution "before

it decided to remand the case to state court, while it still had control of

the case." Id.

18 IN RE: BLACKWATER SECURITY CONSULTING
Lontz, 413 F.3d 435, we decided a similar case in which the defendant

had removed a state labor dispute to federal court, claiming federal

question jurisdiction via complete preemption. The Lontz defendant

had claimed complete preemption on the theory that Sections 7 and

8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. §§ 157-

158 (2000), required resolution of certain labor disputes before the

National Labor Relations Board ("NLRB") rather than in state or federal court. We concluded that the NLRA provisions do not completely

preempt state law and that the district court consequently lacked federal question removal jurisdiction. Lontz, 413 F.3d at 442-43. We

directed the district court to remand, rather than dismiss, claims that,

if the NLRA applied to them, would not be justiciable in state court.

See id. at 443-44. We recognized in Lontz that, to the extent that the

NLRA applied to the plaintiff’s claims, the statute entitled the defendant to adjudication of those claims solely before the NLRB. See id.

Nevertheless, that possible entitlement did not transform a defense of

ordinary federal preemption into a right to a federal forum in which

to raise and litigate that defense on the merits. Furthermore, "the futility of a remand to [state court] does not provide an exception to the

plain meaning of § 1447(c)." Roach v. W. Va. Reg’l Jail & Corr.

Facility Auth., 74 F.3d 46, 49 (4th Cir. 1996). We therefore see no

reason why Blackwater’s possible entitlement to adjudication before

the Department of Labor should allow it to characterize the district

court’s denial of its motion to dismiss as a conclusive denial of a substantive right. 

Finally, once a district court determines that it lacks subject matter

jurisdiction over a removed case, § 1447(c) directs that the case "shall

be remanded." This mandate is so clear that, once a district court has

found that it lacks subject matter jurisdiction in a removed case, no

other fact-finding, legal analysis, or exercise of judicial discretion is

necessary in order to follow the congressional directive; the decision

to remand a case to remedy a lack of subject matter jurisdiction is

purely ministerial. See Int’l Primate Prot. League v. Adm’rs of Tulane

Educ. Fund, 500 U.S. 72, 89 (1991) (noting that § 1447(c) grants "no

discretion to dismiss rather than remand [a removed] action" in which

subject matter jurisdiction is lacking (internal quotation marks and

citation omitted)), superseded on other grounds by 28 U.S.C.

§ 1442(a)(1) (2000). We therefore conclude that the district court’s

"decision" to remand instead of dismiss is not only not conclusive, but

IN RE: BLACKWATER SECURITY CONSULTING 19
also intimately enmeshed with and unseverable from the remand

order.

ii.

We similarly do not have jurisdiction under Waco’s severable order

exception to review the district court’s conclusions that neither complete preemption nor a unique federal interest created a federal question for the purposes of removal. Our decision in Nutter, 4 F.3d 319,

forecloses the possibility. 

The Nutter defendant had claimed that removal jurisdiction was

proper because two federal statutes completely preempted the plaintiff’s state-law claims and, therefore, presented federal questions. The

district court rejected this complete preemption argument and

remanded the case to state court for lack of removal jurisdiction. We

concluded that this determination that the federal statutes did not

completely preempt Nutter’s state-law claims would have no preclusive effect in subsequent proceedings and thus that it was not a decision that was conclusive upon the parties. Id. at 321-22. 

Similarly here, the district court’s findings regarding complete preemption could foreclose state-court litigation of Blackwater’s DBA

and constitutional claims only if principles of preclusion prevented

Blackwater from later raising a defense of ordinary federal preemption. Here, as we did in Nutter, we conclude that the district court’s

finding that complete preemption did not create federal removal jurisdiction will have no preclusive effect on a subsequent state-court

defense of federal preemption. We conclude that Nutter’s reasoning

applies with equal force to the district court’s companion conclusion

that Blackwater’s asserted unique federal interest could not convey

federal removal jurisdiction. 

In addition, the district court’s complete preemption and unique

federal interest analysis cannot be disengaged from the remand order

itself. In Nutter, we concluded that the district court’s complete preemption conclusion was unseverable from its determination that it

lacked removal jurisdiction: "the [district] court’s findings regarding

preemption and jurisdiction are indistinguishable. The preemption

findings were merely subsidiary legal steps on the way to its determi20 IN RE: BLACKWATER SECURITY CONSULTING
nation that the case was not properly removed." Id. at 321 (internal

quotation marks and citation omitted). Indeed, the district court’s conclusions here with respect to complete preemption and the presence

of a unique federal interest cannot be severed from the remand order,

as they are simply the necessary legal underpinning to the court’s

determination that the case was not properly removed.8

3.

As we have explained, § 1447(d) also does not apply to remand

orders based upon factors that the district court was not statutorily

authorized to consider. See Thermtron, 423 U.S. at 351. A district

court exceeds its statutory authority when it remands a case "on

grounds that seem justifiable to [the court] but which are not recognized by the controlling statute." Id. For example, in Thermtron the

Supreme Court held that § 1447(d) does not prohibit review of a

8Blackwater additionally argues that it is the functional equivalent of

a federal officer and that removal jurisdiction therefore existed in the district court under 28 U.S.C. § 1442(a) (2000). Blackwater failed to raise

this issue before the district court. Citing 28 U.S.C. § 1653 (2000),

Blackwater nevertheless invites us to deem its notice of removal to be

amended to include § 1442(a) as an asserted basis for removal, to interpret the district court’s failure to consider that basis as severable from its

remand order under Waco, and thereby to create jurisdiction to review an

issue that the district court never considered. 

While "[d]efective allegations of jurisdiction may be amended, upon

terms, in the trial or appellate courts," § 1653, Blackwater did not simply

omit to cite to § 1442(a). Rather, it failed to argue before the district

court that the provision supported removal. This court generally declines

to consider issues raised for the first time on appeal absent a fundamental

miscarriage of justice. See, e.g., Muth v. United States, 1 F.3d 246, 250

(4th Cir. 1993). Even if it were appropriate, at this point, to deem an

action taken that Blackwater never sought to take, it would not cure

Blackwater’s waiver of the possible jurisdictional basis by failing to marshal arguments and evidence in support of it below. See Venkatraman v.

REI Sys., Inc., 417 F.3d 418, 421-22 (4th Cir. 2005) (holding that a miscarriage of justice had not occurred, so as to require appellate review,

when the district court failed to consider a cause of action not presented

to it). We therefore do not consider whether § 1447(d) bars our review

of this newly raised issue. 

IN RE: BLACKWATER SECURITY CONSULTING 21
remand order based on the district court’s assessment that its docket

was too crowded to hear the case. Id.

Blackwater argues that the court exceeded its authority by remanding the case instead of dismissing it. The district court declined to dismiss the case as an alternative to remand because it determined that

it did not have the authority to decide whether the DBA applied to

Nordan’s claims. Nordan, 382 F.Supp.2d at 814. It based this determination upon the erroneous belief that district courts play no role in

the federal judicial review of DBA claims.9Id. Blackwater claims that

this error concerning the pipeline of review of DBA claims demonstrates that the district court exceeded its authority by remanding and

that the order is therefore not subject to § 1447(d)’s prohibition of

review. It contends that the district court’s remand order had nothing

to do with its stated lack of removal jurisdiction and was instead

based on an erroneous interpretation of the DBA’s judicial review

provisions. 

The district court did not remand on statutorily unauthorized

grounds. Rather, as we have already explained, the remand order was

based upon the district court’s judgment that removal jurisdiction was

not present. Of course, we need look no further than § 1447(c) to conclude that Congress has not only authorized remand under such a circumstance, but also emphatically required it. The district court’s error

concerning the mechanism of judicial review of DBA claims is a non

sequitur to its determination that remand was necessary because it

lacked subject matter jurisdiction to reach any issue other than the

removability of the action. 

The correctness of the district court’s jurisdictional analysis is irrelevant under § 1447(d). See Mangold, 77 F.3d at 1450. If it were not,

we could circumvent the statute simply by declaring the remand order

to be wrong. Such an interpretation of § 1447(d) would eviscerate the

9As we have noted, the federal district courts, followed by the federal

courts of appeals and the United States Supreme Court, review DBA

claims after they have been initially adjudicated in the Department of

Labor. See 42 U.S.C. § 1653(b) (2000); see also Lee v. Boeing Co., Inc.,

123 F.3d 801, 803-05 (4th Cir. 1997) (describing agency and judicial

review of DBA claims). 

22 IN RE: BLACKWATER SECURITY CONSULTING
congressional policy of limiting litigation over the procedural matters

that give rise to remand orders. We also need not decide whether, possessing a proper understanding of the district court’s role in the judicial review of DBA claims, the district court would have been correct

to dismiss the case rather than remand it. For the purposes of

§ 1447(d), the only relevant aspect of the district court’s decision not

to dismiss the case is that it was grounded upon a perceived lack of

subject matter jurisdiction to decide DBA claims. The presence of an

error in that analysis does not change its jurisdictional character.

Thermtron’s exception to § 1447(d) for ultra vires remands thus does

not apply in this case. 

4.

Finally, Blackwater argues that § 1447(d) does not prohibit appellate review in this case because the district court’s decision to remand

undermines the constitutional sequestration of foreign affairs and war

powers within the political branches of the federal government, out

of reach of both the federal and the state judiciaries. Specifically, it

contends that:

Even if the DBA is not applicable, the constitutional separation of powers would preclude judicial intrusion into the

manner in which the contractor component of the American

military deployment in Iraq is trained, armed, and deployed.

Decedents were performing a classic military function —

providing an armed escort for a supply convoy under orders

to reach an Army base — with authorization from the Office

of the Secretary of Defense that classified their missions as

"official duties" in support of the Coalition Provisional

Authority. Federal courts, and a fortiori state courts, may

not impose liability for casualties sustained in the battlefield

in the performance of these duties. A North Carolina trial

court may not adjudicate national political questions that the

Supreme Court has deemed non-justiciable by federal

courts. 

Br. of Appellant pp. 10-11. 

Blackwater overstates both the extent of our decision today and the

state of the record. What we have before us is a complaint alleging

IN RE: BLACKWATER SECURITY CONSULTING 23
that the decedents were independent contractors working for a security company, a notice of removal, a motion to dismiss, and a remand

order. Without intending to diminish the magnitude of the concerns

that Blackwater articulates, we are unprepared to say at this juncture

that the Constitution overrides Congress’s ability to prescribe the limits of federal appellate jurisdiction in matters such as these. 

Blackwater’s argument that neither federal nor state courts may

decide decedents’ claims also proves too much. Distilled to their

essence, Blackwater’s arguments appear to be that we must have

jurisdiction because we have no jurisdiction and that our founding

document simultaneously creates and prohibits jurisdiction in this

case. Both constitutional interpretations are too extravagantly recursive for us to accept. It is, in fact, axiomatic under our federalist system of government that state courts have the authority to decide

federal constitutional issues. Blackwater may assert in state court,

subject to review by the United States Supreme Court, its defenses

regarding the constitutional exclusivity of a federal administrative

remedy. As we recently noted in Lontz, the ability of a state court "to

determine its own jurisdiction is a serious obligation, and not something that federal courts may easily take for themselves." 413 F.3d at

442. For these reasons, we decline to graft a new exception onto the

already significantly burdened text of § 1447(d). 

III.

Blackwater alternatively claims that, even if § 1447(d) prohibits

appellate jurisdiction, we should issue a writ of mandamus to the district court. We are unpersuaded. 

We may issue a writ of mandamus if the petitioner has no other

adequate means to obtain relief to which there is a "clear and indisputable" right. Media Gen. Operations, Inc. v. Buchanan, 417 F.3d 424,

433 (4th Cir 2005). "Mandamus is a drastic remedy to be invoked

only in extraordinary situations." United States v. Moussaoui, 333

F.3d 509, 516 (4th Cir. 2003) (internal quotation marks and citation

omitted). Before we may determine whether Blackwater has met these

stringent requirements, however, we must first inquire whether we

have the authority to issue the writ. 

24 IN RE: BLACKWATER SECURITY CONSULTING
A.

Congress’s restriction on review of remand orders applies to

review "on appeal or otherwise." § 1447(d). The Supreme Court has

interpreted this language to forbid the use of mandamus to circumvent

the requirements of § 1447(d). Thermtron, 423 U.S. at 343. Given that

§ 1447(d) precludes our ability to review the district court’s order by

appeal, precedent dictates that it applies to preclude our review by

mandamus as well.

Further, given the state of the record at this juncture, reflecting

only cursory, untested factual allegations, mandamus would still be

inappropriate under these circumstances. Mandamus is an extraordinary remedy whose issuance depends upon the discretion of the court

considering the petition. United States ex rel. Rahman v. Oncology

Assocs., 198 F.3d 502, 511 (4th Cir. 1999) (citing Kerr v. U.S. Dist.

Court for the N. Dist. of Cal., 426 U.S. 394, 403 (1976)). As the

Supreme Court has instructed, we refrain from issuing a writ of mandamus in all but the most extraordinary circumstances to avoid circumventing congressional judgments about the proper scope of

appellate jurisdiction. See Kerr, 426 U.S. at 403 ("A judicial readiness

to issue the writ of mandamus in anything less than an extraordinary

situation would run the real risk of defeating the very policies sought

to be furthered by [the] judgment of Congress."). 

B.

Blackwater argues, however, that we may issue a writ of mandamus because this case presents a conflict between § 1447(d) and the

DBA. We held in Borneman that § 1447(d) could not "be read categorically when other statutes in tension with it are considered." 213

F.3d at 825. Because we interpreted the statute creating that tension

to prohibit absolutely the district court’s remand of the case, we concluded that this tension alternatively permitted review via mandamus.

Id. at 826. However, the statute "in tension" with § 1447(d) in Borneman declared that certain state-court actions brought against federal

employees "shall be removed." 28 U.S.C. § 2679(d)(2) (2000).10 That

10The tension-creating statute in Borneman was a portion of the Federal Employees Liability Reform and Tort Compensation Act of 1988

IN RE: BLACKWATER SECURITY CONSULTING 25
statute thus directly and specifically addressed the removability of the

relevant class of claims and contained language that channeled the

district court’s authority to remand in such cases. This absence of discretion to remand created the tension of which we spoke in Borneman. 213 F.3d at 825. By contrast, Blackwater has not identified any

portion of the DBA that similarly addresses either the removability to

federal district court of state court actions purportedly preempted by

the DBA or the district court’s peculiar lack of discretion with respect

to remand of such cases.11

C.

Blackwater next argues that we may issue a writ of mandamus

because the remand order risks unnecessary tension between state and

federal judicial fora on an extraordinarily important question of federal law. Blackwater attempts to characterize our opinions in Mangold, Jamison, and Shives as authority for the proposition that a writ

of mandamus may issue despite the applicability of § 1447(d) simply

because the remand will have the practical effect of allowing a state

court to decide a federal issue. Blackwater misapprehends the import

of our jurisprudence in two fundamental respects. 

First, Blackwater contorts the meaning of Thermtron, in which the

Supreme Court held that federal appellate courts may review via man-

("the Westfall Act"). Sections 5 and 6 of the Westfall Act, 28 U.S.C.

§ 2679(b), (d) (2000), give federal employees absolute immunity from

liability in tort for actions within the scope of their employment and

create a procedural mechanism by which this immunity is enforced.

When a federal employee is sued for a tort committed within the scope

of his or her employment, the Attorney General may issue a certification

that the facts underlying the claim did in fact arise within the scope of

the defendant’s federal employment. § 2679(d)(1)-(2). If such a certification is issued in a case brought in state court, the case "shall be removed

without bond . . . to the [appropriate federal] district court," where the

court must substitute the United States as the sole defendant.

§ 2679(d)(2). 

11Indeed, the statutory authority under which Blackwater sought

removal in this case simply allows that state-court actions raising a federal question "may be removed" to federal district court. § 1441(a). 

26 IN RE: BLACKWATER SECURITY CONSULTING
damus remand orders that are not covered by § 1447(d). The Thermtron Court concluded that, even though § 1447(d) did not apply to the

remand order at issue, the order was nevertheless unreviewable by

appeal because it was not a final judgment. 423 U.S. at 352-53, overruled by Quackenbush, 517 U.S. at 714-15 (holding that remand

orders are final for the purposes of appellate review). Thermtron,

therefore, established mandamus as a means to circumvent not

§ 1447(d)’s proscription against review of certain remand orders, but

the finality requirement of 28 U.S.C. § 1291 (2000). 423 U.S. at 352-

53. Similarly, in Mangold and Jamison, we referred to the use of the

writ of mandamus not as an end-run around § 1447(d) but as an alternative to satisfaction of § 1291 or membership in the narrow class of

collateral orders reviewable under Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546-47 (1949). See Mangold, 77 F.3d at 1453;

Jamison, 14 F.3d at 233-34. Because we conclude that Blackwater

has not overcome the hurdle of § 1447(d), we have no occasion to

consider whether the doctrine of finality has been satisfied in this

case. 

Second, Blackwater fails to acknowledge a key difference between

the record before us today and the record before us in Shives. We

expressed in Shives some doubt about our ability to exercise appellate

jurisdiction, but concluded that we could, in the alternative, issue a

writ of mandamus "[t]o avoid forfeiting the federal courts’ role of

reviewing LHWCA coverage issues." 151 F.3d at 167. As we have

explained, in Shives, the district court decided whether the employee’s claim, which had been filed in state court under the FELA, was

in fact covered by the LHWCA. If the FELA provided the employee

with his cause of action, then removal was improper because

§ 1445(a) prohibits removal of state-filed FELA claims. However, if

the LHWCA governed the claim instead, the employee could not proceed under the FELA and § 1445(a) would not apply. Determination

of the applicability of the LHWCA to the employee’s claims was,

therefore, a critical step in the district court’s inquiry into the propriety of removal in that case. Furthermore, the parties had stipulated to

the facts relevant to the question of whether the LHWCA applied to

the employee’s claim. Shives thus presented the court of appeals with

an order in which the district court actually decided, on an uncontested factual record and as part of its inquiry into the permissibility

of removal, whether the LHWCA covered the plaintiff’s claims. 

IN RE: BLACKWATER SECURITY CONSULTING 27
Here, as we have explained, we have no coverage question to

review — and rightfully so, as the district court did not need to reach

that issue as part of its removal jurisdiction analysis — nor do we

have a factual record in which the legally material facts are uncontested. Given the preliminary nature of the proceedings below and the

resulting lack of adversarial development of the factual allegations in

this case, as well as the absence of an independently reviewable order,

mandamus is not only not compelled by Shives but is also particularly

inappropriate. We therefore decline to expand Shives so far afield of

the original congressional intent embodied in § 1447(d). 

IV.

For the foregoing reasons, we conclude that we lack jurisdiction to

hear this case and grant Nordan’s motion to dismiss Blackwater’s

appeal. We also deny Blackwater’s petition for a writ of mandamus.

Finally, we deny as moot Nordan’s motion to strike. 

APPEAL DISMISSED;

PETITION FOR WRIT OF MANDAMUS DENIED;

MOTION TO STRIKE DENIED AS MOOT

28 IN RE: BLACKWATER SECURITY CONSULTING