                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                         _______________________

                               No. 00-60104
                           Cons/w 00-60531
                         _______________________


D. EUGENE ARNOLD, on behalf of himself and all other residents of
the State of Mississippi who own dwellings, and who are otherwise
similarly situated, in Jackson, Harrison and/or Hancock Counties,
Mississippi, BOBBY E. VINING; DANIEL B. STORY,

                                                   Plaintiffs-Appellees,

                                 versus

STATE FARM FIRE AND CASUALTY COMPANY; ALLSTATE INSURANCE COMPANY,

                                                  Defendants-Appellants.


_________________________________________________________________

          Appeals from the United States District Court
             for the Southern District of Mississippi
_________________________________________________________________

                            December 28, 2001

Before JONES, DeMOSS, and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

           As its courts have become a mecca for plaintiffs’ claims

against out-of-state businesses, Mississippi is affording numerous

opportunities for federal courts to explore questions of removal

jurisdiction and remand.       In this diversity case, the district

court remanded a putative class action removed from the state court

after   making   three   decisions:   (a)   it   implicitly   ignored   the

remaining claims of one named plaintiff who had settled with his
insurer;   (b)    it    disregarded   class     action   allegations   because

Mississippi courts currently do not authorize class action joinder;

and (c) it held that the remaining two named plaintiffs’ claims

fell below the minimum federal jurisdictional amount.            Whether the

remand order or any of these specific decisions is reviewable by

appeal or mandamus is the question before us.             We conclude that we

must dismiss the appeal.

                                 BACKGROUND

           Plaintiffs Arnold, Vining and Story filed a purported

class action suit in Jackson County, Mississippi, court to complain

of a two-percent hurricane deductible imposed by their three

insurance carriers on damage claims following Hurricane Georges.

Although Mississippi procedure does not currently recognize class

actions,    the        plaintiffs’    counsel     meticulously     pled    the

prerequisites of a federal class action, hoping to persuade state

courts to innovate in this case.           Because there are thousands of

similarly situated homeowners, the allegations foreshadowed an

aggregation of punitive damages greatly in excess of the federal

jurisdictional minimum1 and would ordinarily have sufficed to

justify the insurers’ removal of the case to federal court.

           But the federal district court did not respond warmly to

removal.   With the barest discussion, he held that the plaintiffs’

claims encompassed only two named individuals and a few thousand


     1
      Allen v. R&H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995).

                                       2
dollars in potential damages.   He remanded the case to state court

and then refused to entertain a motion to reconsider, because the

remand order had been prematurely certified to the state court

through an oversight of the clerk’s office.       See Browning v.

Navaro, 743 F.2d 1069, 1078-79 (5th Cir. 1984).

                            DISCUSSION

          In their appeal or alternative petition for mandamus,

State Farm and Allstate confront Congress’s intent to limit appeals

of remand orders.   28 U.S.C. § 1447(d) precludes appellate review

of a remand order premised on lack of jurisdiction2 -- but that is

precisely the kind of order that the district court issued here.

Each of his decisions dissecting the plaintiffs’ complaint was made

in order to determine jurisdiction.   No appeal lies from a remand

ruling, no matter how erroneous, which is actually predicated on

lack of federal subject matter jurisdiction.

          That there were errors here is unfortunately too clear.

The district court failed to consider the claim of plaintiff Story

for purposes of tallying a jurisdictional amount.      Even though

Story had settled with his insurer USF&G, which had been dismissed

before removal, Story remained a named plaintiff in a complaint


     2
      In Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 96
S.Ct. 584 (1976), the Supreme Court emphasized the unavailability
of appeals where the remand order is footed on lack of federal
jurisdiction, even as it carved out an exception allowing appeals
where the order falls outside § 1447(c).         See also Things
Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494,
496-97 (1995).

                                 3
that charged conspiracy among the companies and with the State

Commissioner of Insurance. The technical possibility thus remained

that Story could assert damages against defendant insurers with

whom he had no contract.        Some estimate of such damages should have

been made.     This oversight of the district court was minor, and it

amounts   to     no     more    than    a    miscalculation     pertinent   to

jurisdictional amount.          This part of the remand order cannot be

reviewed on appeal or otherwise.

             The district court also probably erred in attributing

extremely small amounts of punitive damages to the claims of Arnold

and Vining, and he appears to have erred in adding up their claims

and   finding    that    they   did    not   satisfy   the   $75,000   federal

threshold.3       But     again,      mathematical     errors   in   assessing

      3
      The judge calculated compensatory damages of $10,402 for
Arnold and $1,082 for Vining arising solely from the hurricane
deductible. He ignored damages for the tortious actions claimed by
these plaintiffs. He applied a very conservative ratio of 6:1 for
any punitive damage award. Contrary to the court’s math, the total
actual and punitive damages so estimated exceed $75,000. Based on
other Mississippi awards, it is highly unlikely that the plaintiffs
will be content with seeking a 6:1 ratio. See, e.g., State Farm
Mut. Auto Ins. Co. v. Grimes, 722 So.2d 636 (Miss. 1998) ($1.25
million in punitive damages awarded on $1,900 actual damages).
     The district court fortified his ruling with reliance on post-
removal affidavits by Arnold and Vining that limit their joint
claims to less than $75,000. We agree with the judge’s view that
the affidavits preclude Arnold and Vining from seeking damages in
excess of that amount in state courts either as a judicial
admission, judicial estoppel or a matter of preclusion. See Bogle
v. Phillips Petroleum Co., 24 F.3d 758, 762 (5th Cir. 1994).
Compare Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585-86, 119
S.Ct. 1563, 1570-71 (1999) (Supreme Court suggests in dictum that
certain federal court jurisdiction decisions may be binding on
parties on remand as a matter of issue preclusion. For present
purposes, we assume arguendo that Arnold’s and Vining’s post-

                                         4
jurisdictional amount do not confer appellate authority on this

court.

           Most critically, the court erred in disregarding the

class action allegations.     This error poses a far more serious

possibility of appellate review, because it is a decision logically

antecedent to the question of remand that involves the joinder of

parties.

           A recent decision of this court carefully summarizes our

profuse caselaw on the reviewability of district court decisions

associated with remand orders. Doleac ex rel. Doleac v. Michalson,

264 F.3d 470 (5th Cir. 2001).   Like its predecessors, Doleac finds

the original test for appellate jurisdiction in City of Waco v.

United States Fid. & Guar. Co., 293 U.S. 140, 143, 55 S.Ct. 6, 7

(1934). City of Waco explained that while a remand order cannot be

reviewed on appeal, certain separable orders that (1) logically

precede the remand and (2) are conclusive, in the sense of being

functionally unreviewable in state courts, can be reviewed.     293

U.S. at 143, 55 S.Ct. at 7.     Such orders must, however, also be

independently reviewable by means of devices like the collateral

order doctrine.   Doleac, 264 F.3d at 478.

           Here, there is no question that the disregarding of class

action allegations, which amounted to a refusal to acknowledge the


removal affidavits merely “clarified” their claims at the date of
filing and did not impermissibly attempt to reduce those claims
solely to compel remand. DeAguilar v. Boeing Co., 47 F.3d 1404
(5th Cir. 1993).

                                 5
potential joinder of additional parties, preceded the remand in

logic and in fact. Whether that decision was “conclusive” for City

of Waco purposes might be uncertain based on the analysis in

Doleac.     In that case, the district court allowed an amendment

joining a non-diverse defendant after considering factors, peculiar

to federal court procedure, that would affect the propriety of such

a jurisdiction-divesting order.              Doleac pointed out the various

difficulties, case-specific difficulties that we need not recount,

attendant on finding the order “conclusive.” But as in Doleac, the

“conclusiveness” of the lower court’s decision concerning the

amenability of this case to Rule 23 class action treatment is

dubious, because the decision affects only the forum in which the

case will be heard; the district court’s opinion on either federal

or Mississippi class action practice cannot affect Mississippi

courts.     “Thus, [w]hile the conclusiveness of the [decision to

disregard    class     action       allegations]      suggests    a   substantive

decision, the lack of preclusiveness suggests a jurisdictional

decision.”       Doleac, 264 F.3d at 470.        Doleac used the terminology

advanced    in    previous   Fifth     Circuit     cases   --    “jurisdictional”

decisions are not “conclusive,” while “substantive” decisions are.

See, e.g., Linton v. Airbus Industrie, 30 F.3d 592 (5th Cir. 1994),

cert. denied, 513 U.S. 1044, 115 S.Ct. 639 (1994). Notwithstanding

such uncertainties, Doleac ultimately held us bound by an earlier

precedent    stating    that    a    decision    on   joinder    of   a   party   is

separable for City of Waco purposes.             See Doleac, 264 F.3d at 489,

                                         6
relying on Tillman v. CSX Transportation, Inc., 929 F.2d 1023 (5th

Cir. 1991).   Following Doleac, we must conclude that the district

court’s refusal to recognize a class action is separable from the

remand order.

           The next step of the analysis considers whether the

district court’s class action decision, though not a final order

under 28 U.S.C. § 1291, is independently reviewable under the

collateral order doctrine.        See Doleac, 264 F.3d at 489; Mitchell

v. Carlson, 896 F.2d 128, 133 (5th Cir. 1990).                     An appealable

collateral order is an order that conclusively resolves an issue

separate   from   the    merits   of   the      controversy,   is    effectively

unreviewable on appeal from final judgment, and is too important to

be denied review.       Quackenbush v. Allstate Insurance Co., 517 U.S.

706, 712, 116 S.Ct. 1712, 1718 (1996).              The precise order we are

considering held that because Mississippi does not currently allow

class actions, a diversity suit removed from Mississippi court but

alleging a class action under Fed. R. Civ. P. 23 could not be

entertained as a federal court class action.            The district court’s

decision on this purely legal issue is both final and separate from

the merits of the lawsuit.        Further, because the court determined

that the case would not be heard as a federal class action, the

decision radically affected the nature of the suit as well as the

forum in which it would be litigated.                  Such an order would

ordinarily seem too important to be denied interlocutory review,

not   in   the    least     because        it    represents    a     fundamental

                                       7
misunderstanding by the district court of the principles that the

Erie doctrine is limited to matters of state substantive law and

that cases removed to federal court are governed solely by federal

procedure.    See Hanna v. Plumer, 380 U.S. 460, 465, 85 S.Ct. 1136,

1141 (1965); Willy v. Coastal Corp., 503 U.S. 131, 134-35, 112

S.Ct. 1076, 1079 (1992); Resolution Trust Corp. v. Northpark Joint

Venture, 958 F.2d 1313, 1316 (5th Cir. 1992).

            The   sticking   point    in   collateral   order   analysis   is

whether the district court’s order is effectively unreviewable.

Were it not for the remand, the decision to disregard the class

allegations    would   clearly   be    reviewable   along   with   a   final

judgment.     It is effectively unreviewable, however, not just

because of the remand, but because the issue will be irrelevant in

state court.      This is troubling, but not enough to propel the

district court’s decision into the narrow class of appealable

collateral orders.     First, whether for good or ill, federal courts

have not previously been predisposed to expedite appellate review

of class action certifications or denials.               See generally 7B

Wright, Miller & Kane, Federal Practice & Procedure § 1802 (1986).

Even after the 1998 amendment of Rule 23 facilitated interlocutory

appeal of class action orders, that avenue is hedged by a strict

timetable and considerable appellate court discretion. See Fed. R.

Civ. P. 23(f). More important, engaging in appellate review of the

district court’s joinder decision would lead to an impermissible

advisory opinion, for under City of Waco, our decision cannot

                                      8
reverse the remand order, which in any event has no effect,

preclusive or otherwise, on the ongoing state litigation.

          Thus, while the district court’s decision disregarding

the plaintiffs’ class action allegations is separable under City of

Waco, it does not qualify as a reviewable collateral order.     We

return to the nostrum originally invoked concerning appellate

jurisdiction over remand orders -- where the court’s order is

premised on lack of federal subject matter jurisdiction, even

though it be wrong, it is not reviewable “by appeal or otherwise.”

28 U.S.C. § 1447(d).    Because neither the remand order nor the

separable decision concerning the class action is reviewable, this

court lacks jurisdiction and must dismiss the appeal.

          Appeal DISMISSED; mandamus DENIED.




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