* Chief District Judge of the Western District of Louisiana, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-20618

DR. KIMON ANGELIDES,

Plaintiff-Appellee

-vsBAYLOR COLLEGE OF MEDICINE, DR. WILLIAM T. BUTLER, DR. ROBERT

M. RICH, DR. SUSAN M. BERGET, DR. ARTHUR BROWN, MR. MARK LEWALLEN,

DR. BARBARA WIBL E

, DR. GRETCHEN J. DARLINGTON, DR. MARY K. ESTES,

DR. HIRAM F. GILBERT, DR. PETER D. KLEIN, DR. JAMES

R. SMITH, DR.ADDISON A. TAYLOR, and SARAH P. VONROSENBERG,

Defendants-Appellants

Appeal from the United States District Court for

the Southern District of Texas

July 11, 1997

Before WIENER and PARKER, Circuit Judges, and LITTLE, District Judge. *

LITTLE, District Judge:

Defendants/Appellants ask this court to overturn or vacate by writ of mandamus the

district court’s order of remand. They also appeal the district court’s determinations in the

remand order that the appellants are not entitled to immunit y and that the plaint iff is not

required to exhaust available administrative remedies before proceeding with this suit. We

dismiss the mandamus petition and appeal for lack of appellate jurisdiction.

I. Factual and Procedural Background

Plaintiff/Appellee Kimon Angelides was a tenured faculty member and research

scientist at the Baylor College of Medicine. He worked in the fields of molecular physiology,1 “If at any time before final judgment it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

2 biophysics, neuroscience, and biochemistry. Baylor terminated Angelides’s employment in

1995 after it investigated charges against him of scient ific misconduct and found that he had

falsified and fabricated research results. The individual appellants participated in Baylor’s

investigation and termination of Angelides. Angelides filed this suit against appellants in

Texas state court, charging breach of contract, libel, slander, false imprisonment, and other

state law claims.

Appellants removed t he action to federal court pursuant to 28 U.S.C. § 1441,

asserting “conflict” and “core” pre emption, and 28 U.S.C. § 1442(a)(1), asserting that

appellants acted at the direction of federal officers. Angelides moved to remand. The district

court perfunctorily denied the remand motion.

Appellants then moved to dismiss or for summary judgment on three grounds. First,

appellants asserted that the su it should be dismissed because they were absolutely immune

from prosecution as governmental employees exercising discretio nary functions at the

direction of the federal government. Second, appellants contended that they were entitled to

qualified immunit

y from the purported constitutional tort claims in the suit. Third, appellants

argued that the suit should be dismissed or stayed under the doctrine of primary jurisdiction

in that Angelides had not exhausted available administrative remedies with the federal Office

of Research Integrity.

In its Memorandum Opinion addressing the appell ant s’ motion to dismiss or for

summary judgment, the district court revisited its remand order. Finding that its prior order

denying remand was improvidently entered, the court ordered the case remanded pursuant

to 28 U.S.C. § 1447(c) for lack of federal subject matter jurisdiction. 1 The district court held

that “this Court lacks original jurisdiction over the claim s because the case does not ari se

under federal law. Federal law does not create the cause of action and the relief sought by2 “An order remanding a case to the State court from which it was removed is not reviewable on

appea l 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.” 28 U.S.C. § 1447(d). The

sole statutory exception to the rule barring review of remand orders is thus for civil rights cases removed

pursuant to 28 U.S.C. § 1443.

3 the plaint iff does not depend upon the resolution of a substantial question of federal l aw.”

District court opinion, p. 12 (citations omitted).

Subject matter jurisdiction, however, was not the only issue addressed in the district

court’s opinion. The court preceded it s remand determination by discussing and rejecting

appellants’ defenses of immunit y and non-exhaustion of administrative remedies. The court’s

determinations as to immunit y and exhaustion are the fuel for the appeal. Appellants contend

not only that the district court’s analysis of the immunit y and exhaustion issues was incorrect,

but that the errors require this court to overturn the remand order.

We begin and end our analysis with a consideration of appellate jurisdiction.

II. Remand Review

Appellate courts are precluded from reviewing remand orders issued pursua nt to

§ 1447(c), by appeal, mandamus, or otherwise. 2 28 U.S.C. § 1447(d); T hings Remembered,

Inc. v. Petrarca

, --- U.S.

---, 116 S. Ct. 494, 497, 133 L. Ed. 2d 461, 466 (1995); T hermtron

Products, Inc. v. Hermansdorfer

, 423 U.S. 336, 343 (1976). This is true even if the district

c ourt’s order was erroneous. T hermtron

, 423 U.S. at 343; T illman v. CSX Transp., Inc.

,

929 F.2d 1023, 1028 (5th Cir. 1991). The rationale for the rule is that allowing federal appeal

of remand orders would delay justice in state courts. Thermtron , 423 U.S. at 351.

The Supreme Court in Thermtron identified one narrow exception to the strict bar to

appellate review of remand orders. A remand order may be reviewed where the district court

“has remanded [a case] on groun d s not authorized by the removal statutes.” I d. at 353

(reviewable by writ of mandamus). That exception does not apply here because the district

court expressly remanded on an authorized ground, lack of subject matter jurisdiction3 E.g

. , Linton v. Airbus Industrie , 30 F.3d 592, 599 (5th Cir. 1994) (review of remand denied

despite post-removal event, a stipulation as to citizenship); T illman

, 929 F.2d at 1 025 (review of remand

denied despite post-removal event, the joinder of a state agency); M itchell v. Carlson

, 896 F.2d 128, 131 (5th

Cir. 1990) (revie w of remand denied despite post-removal event, the substitution of a party , and despite

appellate finding that the district court’s remand decision was incorrect); I n re Merrimack Mut. Fire Ins. Co.

, 587 F.2d 642, 647-49 (5th Cir. 1978) (review of demand denied despite post-removal event, the addition of

parties).

4 pursuant to § 1447(c). Things Remembered

, --- U.S. at ---, 116 S. Ct. at 497, 133 L. Ed.

2d at 466.

Against the strict backdrop of § 1447(d), appellants contend that the remand order

in this case is reviewable because it was based on a post-removal event, the denial of

immunit y. Appellant

s st ress t hat the district court originally denied remand, then granted

remand after denying immunit y. This court, however, has held on numerous occasions that

a remand order based on § 1447(c) jurisdictional grounds is not reviewable even if based on

a post-removal event. 3 Although none of the previous cases considered the denial of

immunit y as a purported “post-removal event,” we find no reason to diverge here from the

plain, broad dictates of § 1447(d).

Also unavailing is the argument that the remand order should be overturned because

the district court did not properly consider in its written opinion whether appell a nts were

act ing at the direction of federal officers, thereby satisfying subject matter jurisdiction

pursuant t o § 1442(a)(1). District court invocation of § 1447(c) precludes review of a

remand order no matter how clearly erroneous the order appears on its face. T hermtron

, 423

U.S. at 343.

We purposefully decline to follow the Fourth Circuit’s evisceration of § 1447(d) in

Jamison v. Wiley , 14 F.3d 222, 238-40 (4th Cir. 1994), where the appellate court held that

mandamus relief was appro priate when a district court’s remand error was of a “sufficient

magnitude.” 14 F.3d at 239. To the contrary, we hold that this court is powerless to review

erroneous remand orders founded on § 1447(c).5 The paramount issue is that the district court explicitly based its remand order on

§ 1447(c). Congress in enacting § 1447(d) made no exception to the bar on appellate remand

review for cases requiring immunity or exhaustion determinations.

III. Collateral Order Doctrine

Appellants contend that even if the remand or d er is not reviewable, this court has

appellate jurisdiction under the collateral order doctrine to review the district court’s denial

of appellants’ mo t io n to dismiss on the grounds of immunity and non-exhaustion of

administrative remedies.

This court has appellat e jurisdiction over all “final decisions” of the district courts.

28 U.S.C. § 1291. The collateral order doctrine provides that a narrow class of district court

decisions that are not final judgments nevertheless may be immediately appealed pursuant to

§ 1291. Cohen v. Beneficial Indus. Loan Corp.

, 337 U.S. 541, 546 (1949). The collateral

order doctrine embraces

that small class [of decisions] which finally determine claims of right separable

from, and collateral to, rights asse rted in the acti on, too i m portant to be

denied review and too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated.

Id.

We have already de t ermined that appellate review of the remand order is

impermissible. The second critical issue in this appeal is whether the district court’s immunity

and exhaustion decisions are “separabl e” and thus can be afforded independent appellate

review.

An order is “separable” from an order of remand and eligible for appellate review if

two conditions are satisfied. First, it must precede the order of remand “in logic and in fact,”

so as to be made while the district court had control of the case. C ity of Waco v. United

States Fidelity & Guar. Co.

, 293 U.S. 140, 143 (193 4). Second, the order sought to be

separated must be “conclusive.” Id. ; Linton , 30 F.3d at 597. An order is “conclusive” if it4 See also Nutter v. Monongahela Power C o.

, 4 F.3d 319, 322 (4th Cir. 1993) (noting that

jurisdictional findings incident to remand do not preclude relitigation in state court); B aldridge v. KentuckyOhio Transp., Inc.

, 983 F.2d 1341, 1349-50 (6th Cir. 1993) (finding that where the district court’s collateral

findings were jurisdictional, the parties could raise the issue again in state court); W hitman v. Raley’s Inc.

, 886 F.2d 1177, 1181 (9th Cir. 1989) (finding that the federal court’s ruling on preemption had no preclusive

effect on the state court).

6 will have the “preclusive effect of being functionally unreviewable in the state court.” L inton

,

30 F.3d at 597.

Here, the immunit

y and exhaustion orders preceded the remand order “in logic and

in fact,” but they we re not “conclusive” because, as jurisdictional decisions, they may be

reviewed in the state court. At issue is whether the district court’s immunity and exhaustion

determinations were jurisdictional or substantive. S ee Soley v. First Nat. Bank of Commerce

,

923 F.2d 406, 409-1010 (5th Cir. 1991).

A careful reading of previous Fifth Circuit and Supreme Court opinions is required.

Appellants rely on City of Waco

, Mitchell v. Carlson

, and John G. & Marie Stella Kennedy

Mem. Found. v. Mauro

, 21 F.3d 667 (5th Cir. 1994), three cases in which the court granted

collateral appellate review after remand orders by the district court. In those cases, however,

the separable porti on of the order denied a substantive right not subject to review by the state

court. The orders were thus “conclusive.” In C ity of Waco the state court would not be able

to reconsider the district court’s dismissal of the cross-action. 293 U.S. at 143. In M itchell

the state court would n ot be able to reconsider a district court order resubstituting a

defendant. 896 F.2d at 133. Finally, in M auro the state court would not be able to revisit the

district court’s dismissal of the Foundation’s federal claims. 21 F.3d at 670.

This case is closer to Linton

, Soley

, and Mobil Corp. v. Abeille General Ins. Co.

, 984

F.2d 664, 666 (5th

Cir. 1993). 4 In L inton and Mobil Corp. this court declined collateral

review of district court determinations that defendants were not entitled to immunity under

the Foreign Sovereign Immunities Act (the “FS IA”). This court’s analysis in L inton is

instructive:7 In light of the district court’s ultimate conclusion that the entire case had to

be remanded for lack of subject mat t er 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 the case and, as such, can be

reviewed by the state court upon remand.

Linton

, 30 F.3d at 597. Similarly, in S oley this court denied collater al review of a district

court denial of preemption, finding that the order was jurisdictional and could be reconsidered

by the state court. 923 F.2d at 410.

In this case also, we consider the district court’s determinations as to immunity and

exhaustion in its remand order to be jurisdictional in nature. They can be revisited by the state

court. As the district court’s order was not “conclusive,” the collateral order doctrine does

not apply and this court lacks appellate jurisdiction.

IV. Conclusion

By t he clear mandate of § 1447(d), this court is powerless to review the remand

ordered by the district court. The collateral order doctrine do es no t apply because the

jurisdictional issues determined by the district court are not conclusive. This court therefore

lacks jurisdiction to consider appellants’ mandamus petition and appeal.

MANDAMUS PE TITION AND APPEAL DISMISSED FOR LACK OF

APPELLATE JURISDICTION.