
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1174                                     KAY DOUGHTY,                    MASSACHUSETTS COMMISSIONER OF INSURANCE, ETC.,                                 Plaintiff, Appellee,                                          v.                       UNDERWRITERS AT LLOYD'S, LONDON, ET AL.,                               Defendants, Appellants.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                              _________________________          No. 93-1214                                        IN RE:                         DEREK RICHARD WALLIS, ETC., ET AL.,                                     Petitioners.                              _________________________                           ON PETITION FOR WRIT OF MANDAMUS                              _________________________                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                              _________________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                             ___________________________               Mark  A. Kreger,  with  whom Andrew  Kochanowski, Robert  A.               _______________              ___________________  __________          Badgley,  Lord, Bissell & Brook,  Kenneth W. Erickson, Matthew M.          _______   _____________________   ___________________  __________          Burke,  and  Ropes   &  Gray  were  on   brief,  for  appellants-          _____        _______________          petitioners.               Raymond J. Brassard,  with whom Scott  Harshbarger, Attorney               ___________________             __________________          General, Thomas A. Barnico,  Assistant Attorney General, J. David                   _________________                               ________          Leslie, Stephen M. Voltz, and  Rackemann, Sawyer & Brewster, P.C.          ______  ________________       __________________________________          were on brief, for respondent-appellee.                              _________________________                                   October 18, 1993                              _________________________                    SELYA, Circuit Judge.   In this proceeding, we conclude                    SELYA, Circuit Judge.                           _____________          that the  district court's  abstention-based remand order  is not          immediately appealable  and that  mandamus is not  an appropriate          alternative.   Because this jurisdictional determination involves          an issue on which the circuits are somewhat less than uniform, we          take some pains to elucidate our rationale.  We  do not, however,          reach the merits and, accordingly, leave  a veritable hothouse of          efflorescent questions  to  be plucked  at  another time  and  in          another forum.          I.  BACKGROUND          I.  BACKGROUND                    The controversy that is before  us finds its genesis in          a  beguilingly simple question:  "Who insures the insurers?"  The          question  arises  in connection  with  American Mutual  Liability          Insurance Company  (AMLICO),  a Massachusetts-based  firm,  which          entered into a series  of reinsurance contracts over a  period of          more than three decades.  When  AMLICO began paying out huge sums          to  satisfy  asbestos-related claims  at  the  tail  end of  this          period, its efforts to  secure reimbursement from reinsurers bore          no fruit.   Unassisted,  AMLICO  could not  stanch the  financial          hemorrhaging and sought  protection under state  insolvency laws.          The  Massachusetts   Supreme  Judicial  Court  ordered  the  firm          liquidated, and, in due course, appointed respondent-appellee Kay          Doughty,   the  Commonwealth's  Commissioner   of  Insurance,  as          permanent receiver.                    Doughty  filed  suit  in  state  court  to  recover  an          estimated $15,000,000 in overdue reinsurance indemnities, as well                                          2          as  treble  damages  under   the  Massachusetts  trade  practices          statute.  See  Mass. Gen. Laws  ch. 93A,     10, 11 (1984).   She                    ___          named as defendants a melange of entities alleged to have entered          into reinsurance  pacts,  including the  so-called London  Market          Companies and several underwriting syndicates at Lloyd's,  London          (collectively, "the Reinsurers").1                     The  Reinsurers did  not  relish the  chance to  settle          accounts in a court of law.   Citing agreements contained in some          (but far  from all) of  the reinsurance contracts,  they formally          requested that AMLICO submit its claims to arbitration.   Doughty          declined the invitation.  She  asserted, among other things, that          the call for arbitration  came too late; that the  Reinsurers had          waived the benefit of  any agreements to arbitrate; and  that, in          any event, the dispute as a whole did  not qualify as arbitrable.                                        ____________________               1In   labelling  the   London  Market   Companies   and  the          Underwriters  at Lloyd's, collectively,  as "the  Reinsurers," we          exclude for  present  purposes a  number  of domestic  firms  and          certain other foreign-based insurance providers (e.g., English  &                                                           ____          American Insurance  Co. and St.  Helens' Insurance Co.)  named as          defendants in  Doughty's action.  The  appellation "London Market          Companies" is itself a collective term describing a consortium of          foreign-based  insurance  providers,  including Excess  Insurance          Co.; General  Reinsurance  Co. (Amsterdam);  General  Reinsurance          Syndicate; Anglo French Insurance Co. (as successor to Federation          General Insurance Co.); British National Insurance Co.; Sovereign          Marine  & General  Insurance Co.;  Royal Scottish  Insurance Co.;          Swiss National  Insurance  Co.;  Zurich  Reinsurance  (U.K.)  (as          successor to  Turegum Insurance  Co.); and Gan  Minster Insurance          Co.  (as successor to Minster  Insurance Co.).   Finally, we note          that the  Lloyd's underwriting  syndicates are identified  in the          notice of appeal and petition for mandamus only as "Derek Richard          Wallis,  for himself  and  those other  Underwriters at  Lloyd's,          London."                                          3          At that point, the Reinsurers invoked 9 U.S.C.   205 (1988)2  and          removed Doughty's  suit to the  United States District  Court for          the  District of  Massachusetts.   Next,  they  filed motions  to          compel  arbitration  and, as  an  interim  prophylactic, to  stay          proceedings pending the outcome of the arbitral process.  Doughty          objected  to these  motions and  moved on  sundry grounds  for an          order  remanding the case to state court.  The Reinsurers opposed          this motion.                    Concluding  that  principles   of  Burford   abstention                                                       _______          controlled, see Burford  v. Sun Oil Co., 319 U.S. 315 (1943); see                      ___ _______     ___________                       ___          also  Fragoso  v. Lopez,  991 F.2d  878,  882-83 (1st  Cir. 1993)          ____  _______     _____          (explicating  scope,   reach,  and  current   status  of  Burford                                                                    _______          abstention), the district  court overruled appellants'  objection          and granted the motion to remand.  The court did not speak to the          other  reasons advanced  in  support of  the  motion.   Moreover,          consistent  with its  relinquishment of  jurisdiction, the  court          left both the question of arbitrability and the related matter of          a stay to the state tribunal.                    This proceeding ensued.  In it, the Reinsurers wear two          hats, appearing  as both appellants and  petitioners; they appeal                                        ____________________               2This statute  implements the Convention on  the Recognition          of Foreign Arbitral Awards (the "Convention").  It provides that,          if "the subject matter  of an action  or proceeding pending in  a          State court relates to an arbitration agreement or award  falling          under the Convention, the defendant or the defendants may, at any          time before the trial thereof, remove such action or proceeding."          Under  9 U.S.C.   202,  the arbitration agreements  here at issue          arguably  come  within the  Convention's  grasp  because, if  the          agreements exist and remain in effect, at least one party to each          such agreement is a foreign entity.                                          4          from the  remand order  while  simultaneously seeking  a writ  of          mandamus  aimed  at recalling  it.    We consolidated  these  two          initiatives for briefing, oral argument, and decision.          II.  THE APPEAL          II.  THE APPEAL                    We begin  our inquiry into the appeal by addressing the          question  of  appellate  jurisdiction  for,  if  no  jurisdiction          attaches,  the appeal founders.   See In re  Recticel Foam Corp.,                                            ___ __________________________          859 F.2d 1000, 1002 (1st Cir. 1988).  Here, two hurdles block the          jurisdictional path:   the statutory bar  to appellate review  of          remand  orders, see 28 U.S.C.    1447(d) (1988),  and the bedrock                          ___          requirement that  jurisdiction can never  be assumed but  must be          premised on some affirmative source.  See, e.g., Massachusetts v.                                                ___  ____  _____________          V &  M Management, Inc., 929  F.2d 830, 833 (1st  Cir. 1991) (per          _______________________          curiam).   We  trace the  dimensions of each  hurdle and,  in the          process, consider appellants' hurdle-clearing capability.                                A.  The Statutory Bar.                                A.  The Statutory Bar.                                    _________________                    28 U.S.C.   1447(d) provides that "[a]n order remanding          a case  to the  State  court from  which it  was  removed is  not          reviewable  on  appeal  or  otherwise."   Although  this  statute          prohibits appellate review of remand orders "whether erroneous or          not  and whether review is  sought by appeal  or by extraordinary          writ," Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343                 ______________________    _____________          (1976),  the proscription  is deeper  than it  is wide.   Because          courts  must  read  section  1447(d)  in pari  materia  with  its                                                   ____  _______          statutory  neighbor, 28 U.S.C.   1447(c), see Thermtron, 423 U.S.                                                    ___ _________                                          5          at  353, only remand orders issued under the authority of section          1447(c)  are rendered  unreviewable by  the operation  of section          1447(d), see  Garcia v. Island  Program Designer, Inc.,  ___ F.2d                   ___  ______    ______________________________          ___, ___ (1st  Cir. 1993)  [No. 92-1853, slip  op. at 5];  V &  M                                                                     ______          Management, 929 F.2d at  832-33.  And, since section  1447(c), by          __________          its terms,  is concerned  exclusively with remands  stemming from          "defect[s] in  removal procedure"  such that "the  district court          lacks  subject  matter  jurisdiction," it  follows  that  section          1447(d) leaves  open the possibility  of appellate review  in all          cases  that are  remanded  for  reasons  not covered  by  section          1447(c).                    This is  such  an  instance.   Despite  the  fact  that          Doughty articulated several reasons  for remanding the case, many          of which  implicated section 1447(c), the  district court shunted          these asseverations to one  side and instead remanded exclusively          on  the  basis of  Burford  abstention.   Because  abstention, by                             _______          definition, assumes the existence of  subject matter jurisdiction          in the abstaining court   after all, one must have (or, at least,          presume the presence of) subject matter jurisdiction in order  to          decline the exercise of it   section 1447(c) does not apply to an          abstention driven remand.   See Corcoran  v. Ardra Ins.  Co., 842                                      ___ ________     _______________          F.2d 31,  34 (2d Cir. 1988).   Hence, the statutory  bar does not          preclude us from reviewing the lower court's remand order.                   B.  Possible Sources of Appellate Jurisdiction.                   B.  Possible Sources of Appellate Jurisdiction.                       __________________________________________                    Our  determination that  28 U.S.C.    1447(d)  does not          operate to bar  appellate review merely removes the  first hurdle                                          6          blocking the jurisdictional path.   To pass the next  hurdle, the          Reinsurers must  demonstrate the  existence and  applicability of          some affirmative authority conferring jurisdiction  on the courts          of appeals  to review remand  orders of the  sort at issue  here.          The Reinsurers  try  to clear  this hurdle  from three  different          angles.   They urge that the  remand order is appealable under 28          U.S.C.    1291  (1988)(conferring jurisdiction  on the  courts of          appeals  to review "final decisions of the district courts"), or,          alternatively,  as a  collateral order,  see Cohen  v. Beneficial                                                   ___ _____     __________          Industrial Loan Corp.,  337 U.S. 541, 546 (1949), or, if all else          _____________________          fails, on the basis  that the district court's rulings,  taken in          their  totality, constitute a set of  orders appealable under the          Federal  Arbitration   Act.      We   find   these   exhortations          unconvincing.                    1.    The  Final Judgment  Rule.    In  respect to  the                    1.    The  Final Judgment  Rule.                          _________________________          suggestion  that  the  remand  order  is appealable  as  a  final          judgment,  the sockdolager  is that  the  Supreme Court  has said          exactly the opposite:                    [B]ecause an order remanding a removed action                    does   not   represent   a   final   judgment                    reviewable  by appeal,  the remedy in  such a                    case is by mandamus to compel action, and not                    by  writ of  error  to review  what has  been                    done.          Thermtron, 423  U.S. at  352-53 (citation and  internal quotation          _________          marks omitted).                    The  Reinsurers attempt  to deflect  the force  of this          blunt  statement by  suggesting  that it  should  be regarded  as          dictum.  They posit  that, because the Thermtron Court  found the                                                 _________                                          7          remand  order so  egregious as  to justify  mandamus, no  need to          decide the  availability of  direct appellate review  ever arose.          In advancing  this suggestion, the Reinsurers  are whistling past          the graveyard.                     "Dictum" is  a  term that  judges  and lawyers  use  to          describe comments relevant, but not essential, to the disposition          of  legal  questions pending  before a  court.   See  Kastigar v.                                                           ___  ________          United States, 406 U.S.  441, 454-55 (1972); Dedham Water  Co. v.          _____________                                _________________          Cumberland  Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir. 1992);          _____________________________          United States v. Crawley,  837 F.2d 291, 292-93 (7th  Cir. 1988).          _____________    _______          Given the familiar  principle that "whatever may  be done without          the employment of [mandamus], may not be done with it," Ex  parte                                                                  _________          Rowland, 104 U.S. 604, 617 (1882)); see also Helstoski v. Meanor,          _______                             ___ ____ _________    ______          442 U.S. 500, 505-08 (1979),  the Court's statement in  Thermtron                                                                  _________          defies  description as mere dictum.   To the  exact contrary, the          mandamus remedy employed in Thermtron necessarily betokened, and,                                      _________          indeed,  depended on,  the Court's  antecedent holding  anent the          unavailability of direct appellate  review.  Because deleting the          challenged   statement   would  have   impaired   the  analytical          foundation of  the Court's  ultimate decision to  issue mandamus,          that statement  is properly categorized  as part  of the  court's          holding, not as dictum.3                                        ____________________               3On this issue, all roads lead to Rome.  Were  we to assume,          favorably to  appellants, that  the challenged statement  did not          comprise part of  the Court's holding, we  would nevertheless hew          to  it.  Carefully considered language of the Supreme Court, even          if   technically   dictum,   generally   must   be   treated   as          authoritative.  See United  States v. Santana, ___ F.2d  ___, ___                          ___ ______________    _______          (1st  Cir. 1993)  [No.  93-1393, slip  op.  at 19-20];  McCoy  v.                                                                  _____                                          8                    Still using  the final judgment rule  as their stepping          stone, the  Reinsurers make a  second effort to  boost themselves          over  the hurdle     an effort  hinging  on the  assumption  that          Thermtron  did not survive the Court's later decision in Moses H.          _________                                                ________          Cone  Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983).          ____________________    _____________________          This argument, too, is  easily repelled.  The short,  dispositive          answer to the argument  is that this court only  recently refused          to follow those cases  suggesting that Cone undermines Thermtron,                                                 ____            _________          and,  instead, continued  to apply  Thermtron's rule  that remand                                              _________          orders are not final.  See  Garcia, ___ F.2d at ___ [slip op.  at                                 ___  ______          6-8].  That  ends the matter.  It is black-letter  law that, in a          multi-panel  circuit,  newly  constituted  panels  are,  with few          exceptions (none applicable here), bound by prior panel decisions          closely  in point.   See, e.g., United States  v. Wogan, 938 F.2d                               ___  ____  _____________     _____          1446,  1449  (1st Cir.),  cert. denied,  112  S. Ct.  441 (1991);                                    _____ ______          Jusino  v. Zayas,  875  F.2d 986,  993 (1st  Cir.  1989).   Thus,          ______     _____          principles  of  stare  decisis  require  our  allegiance  to  the                          _____  _______          Thermtron rule in this situation.          _________                    The slightly longer, but equally forceful, rebuttal  is                                        ____________________          Massachusetts  Inst. of  Technology,  950 F.2d  13, 19  (1st Cir.          ___________________________________          1991), cert.  denied, 112  S. Ct.  1939 (1992).   This  truism is                 _____  ______          fortified here inasmuch  as the rule  that the Court's  statement          enunciates   that  remand orders  are not final  judgments    has          been  adopted in a long  string of circuit-level  opinions.  See,                                                                       ___          e.g.,  Garcia, ___  F.2d at  ___ [slip  op.  at 7-8];  Melahan v.          ____   ______                                          _______          Pennock Ins.,  Inc., 965 F.2d 1497,  1500 (8th Cir. 1992);  V & M          ___________________                                         _____          Management,  929 F.2d at 833-34; Corcoran, 842 F.2d at 34; Nasuti          __________                       ________                  ______          v. Scannell, 792 F.2d 264, 267 (1st Cir. 1986); see also Milk `N'             ________                                     ___ ____ ________          More,  Inc. v.  Beavert, 963  F.2d 1342,  1344 (10th  Cir. 1992);          ___________     _______          McDermott Int'l v. Lloyd's Underwriters, 944 F.2d 1199, 1203 (5th          _______________    ____________________          Cir. 1991).                                          9          that there seem to be other good reasons counselling in favor  of          Thermtron's continued vitality.   In Cone, the Court held  that a          _________                            ____          stay, issued in order to  permit a related state case to  proceed          prior  to the federal case,  could be appealed  as a final order.          But,  Cone makes  no reference  to Thermtron's  holding vis-a-vis                ____                         _________          remand orders,  a circumstance  which strongly suggests  that the          Court  viewed  the  rules pertaining  to  remands  and to  stays,          respectively, as  separate and  distinct.  Moreover,  the Supreme          Court  has continued to rely  on Thermtron in  the post-Cone era.                                           _________              ____          See, e.g., Carnegie-Mellon Univ.  v. Cohill, 484 U.S. 343,  347 &          ___  ____  _____________________     ______          n.4 (1988).  Such continuing reliance indicates that Thermtron is                                                               _________          still  alive and well.   Then, too,  our reluctance to  find that          Cone implicitly overruled Thermtron is sharpened by the fact that          ____                      _________          Thermtron's "language is rather absolute."   Garcia, slip op.  at          _________                                    ______          7.   Where the Court  has expressed a  rule so clearly,  inferior          courts are entitled to  expect equally blunt guidance  should the          Court wish  to retract the rule  or declare that it  is no longer          good law.  Cone sends no such signal.                     ____                    Lastly,  and relatedly, Thermtron and Cone, scrutinized                                            _________     ____          side by side, highlight certain differences between remand orders          and  stay  orders.    Whereas  stay  orders  ordinarily signal  a          determination  that   there  are  federal  interests   at  stake,          sufficient  ultimately to  justify  a hearing  in federal  court,          remands,  by  definition,   embody  a   determination  that   the          cognizable  federal  interests,  if  any, when  compared  to  the          cognizable state  interests, are  so lacking in  weight that  the                                          10          federal court  either does not have, or  should not appropriately          exercise,  jurisdiction.   A remanded  case's failure  to pass  a          threshold  test of this sort might possibly explain why a federal          appeal  as of  right does  not attach and  the back-up  remedy of          mandamus  is deemed  adequate  protection.   Furthermore,  remand          orders  typically involve  a  single case  that  a federal  court          returns to the state tribunal whence  it emanated.  Consequently,          the  litigation continues to  progress, albeit in  a state rather          than  a federal  forum.    In  that sense,  there  is  neither  a          permanent  disposition  of  the  case  nor  a  disruption  of its          progress.   A  stay, on  the other  hand, typically  involves two          separate proceedings,  say, one  in a state  court and  one in  a          federal court.    When  the federal  tribunal  stays  the  latter          pending  the outcome of the  former in state  court, res judicata                                                               ___ ________          principles  make that  decision effectively  final as  to certain          aspects of the federal case.  See Cone, 460 U.S. at 10-13 & n.11.                                        ___ ____          We  think  this  finality helps  to  explain  why  the Court  has          permitted  appeals to  be taken  from stay  orders in  situations          where remand  orders would not  be appealable.   See In  re Amoco                                                           ___ ____________          Petroleum Additives Co., 964 F.2d 706, 712 (7th Cir. 1992).   And          _______________________          we  think   that  this  twist   affords  an  added   reason  why,          notwithstanding Cone, Thermtron's holding  that a remand order is                          ____  _________          not a final judgment remains intact.                    2.     The  Collateral  Order  Doctrine.     Next,  the                    2.     The  Collateral  Order  Doctrine.                           ________________________________          Reinsurers  argue  that the  remand order,  even  if not  a final          judgment,  may nonetheless  be  appealable under  the  collateral                                          11          order  doctrine.  That doctrine carves out a "narrow exception to          the  normal  application of  the  final  judgment rule,"  Midland                                                                    _______          Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989), limited          _____________    _____________          to  orders that  (1) conclusively  determine (2)  important legal          questions  which are (3)  completely separate from  the merits of          the  underlying action  and are  (4) effectively  unreviewable on          appeal from a final judgment.  See Lauro Lines S.R.L. v. Chasser,                                         ___ __________________    _______          490 U.S.  495, 498 (1989); Cohen, 337 U.S. at 546; In re Insurers                                     _____                   ______________          Syndicate,  Etc., 864  F.2d  208,  210  (1st  Cir.  1988).    The          ________________          Reinsurers contend  that the district court's  remand order meets          these four preconditions.                    Once outside  the purview of  28 U.S.C.    1447(d), see                                                                        ___          supra Part II(A), there is no absolute rule either prohibiting or          _____          permitting  immediate appellate  review of  remand-related orders          under the Cohen rubric.  Compare, e.g., Karl Koch Erecting Co. v.                    _____          _______  ____  ______________________          New York Convention  Ctr. Dev.  Corp., 838 F.2d  656, 658-59  (2d          _____________________________________          Cir.  1988) (permitting  review of  decision  to remand  based on          interpretation of forum selection clause) with, e.g., Corcoran v.                                                    ____  ____  ________          Ardra Ins. Co., 842 F.2d at  35 (dismissing appeal of decision to          ______________          remand based on  Burford abstention).  Rather,  courts must apply                           _______          the  multi-pronged Cohen test to each remand order (or, at least,                             _____          to each type of remand order) in an individualized, case-specific                  ____          manner.   See, e.g.,  Garcia, ___ F.2d  at ___ [slip  op. at 8-9]                    ___  ____   ______          (undertaking  case-specific  analysis).     And,  in  determining          whether a particular remand order falls within or without Cohen's                                                                    _____          collateral  order  exception, courts  must  look  to the  general                                          12          circumstances  surrounding  the order's  issuance,  including the          reasons  underlying it.  See  Travelers Ins. Co.  v. Keeling, 996                                   ___  __________________     _______          F.2d 1485, 1488-89 (2d Cir. 1993); Corcoran, 842 F.2d at 35.                                             ________                    The remand  order here  at issue  does not pass  muster          under Cohen.  The salient legal question that stands separate and                _____          apart from  the merits in  this case   that  is, the "collateral"          issue     is  whether  the  parties' overall  dispute  should  be          resolved in  arbitration.   The district court's  ruling did  not          conclusively determine this issue.  Instead, the district court's          order  set to rest only  the preliminary question  of which court          should  resolve  the  collateral  issue.   In  other  words,  the          collateral issue remains an open matter   a matter that the state          court must yet decide.  We agree with the Second Circuit that, to          come within the collateral order rule, a decree must definitively          resolve the  merits of the collateral issue, not merely determine          which court will thereafter  resolve it.  See Corcoran,  842 F.2d                                                    ___ ________          at 35;  see also Bennett v. Liberty Nat'l Fire Ins. Co., 968 F.2d                  ___ ____ _______    ___________________________          969,  970-71 (9th  Cir.  1992). Determining  whether  a state  or          federal court  is to resolve an issue  constitutes the definitive          resolution of a collateral matter only when special circumstances          exist,   such  as  when  the  remand   is  pursuant  to  judicial          interpretation of a forum-selection provision.  See Corcoran, 842                                                          ___ ________          F.2d at 35.   That is not  the case here.  Hence,  the order that          the Reinsurers contest does not satisfy the first precondition to          appealability under the Cohen doctrine.                                  _____                    The Reinsurers  attempt to subvert  this conclusion  by                                          13          redefining the collateral issue.  They suggest that the  question          is  not whether  the  underlying dispute  should  be resolved  in          arbitration, but, rather, whether a federal or state court is the          proper  forum for  determining the  dispute's arbitrability.   We          think  this  argument  proves  too  much.    Every  remand  order          conclusively determines which court will thereafter determine the          issues in  controversy.  Thus, appellants'  approach could easily          expand  Cohen  beyond  the   isthmian  confines  that  the  Court                  _____          envisioned,  see Cohen, 337 U.S.  at 546 (predicting  that only a                       ___ _____          "small  class" of cases would  be affected by  the doctrine), and          thereby   thwart  the  strong   federal  interest  in  precluding          piecemeal  appeals.  See Coopers  & Lybrand v.  Livesay, 437 U.S.                               ___ __________________     _______          463, 471 (1978); Recticel, 859 F.2d at  1003 & n.3.  At any rate,                           ________          we  are skeptical  about  permitting litigants  to avoid  Cohen's                                                                    _____          first prong by the  simple expedient of distilling issues  to the          smallest possible unit of measurement.  We, therefore, decline to          accept the Reinsurers' attempted reformulation  of the collateral          issue.  See generally  Travelers Ins. Co. v. Keeling, 996 F.2d at                  ___ _________  __________________    _______          1489 (refusing,  in nearly identical  circumstances, to  redefine          the issue in dispute); Corcoran, 842 F.2d at 35 (similar).                                 ________                    In  all  events, we  conclude  that,  whatever way  the          collateral issue is  defined, the remand order is not immediately          appealable because it fails  another element of the test.   Cohen                                                                      _____          requires  that the  disputed  issue represent  "an important  and          unsettled question of controlling  law, not merely a  question of          the  proper exercise of the trial court's discretion."  Boreri v.                                                                  ______                                          14          Fiat S.p.A., 763  F.2d 17,  21 (1st Cir.  1985); accord  Insurers          ___________                                      ______  ________          Syndicate, 864 F.2d  at 210;  United States v.  Sorren, 605  F.2d          _________                     _____________     ______          1211, 1213 (1st Cir. 1979); see also Lauro Lines, 490 U.S. at 504                                      ___ ____ ___________          (Scalia,  J., concurring) (explaining  that the  collateral issue          must  be   "sufficiently  important  to   overcome  the  policies          militating  against   interlocutory  appeals").     Although  the          question, admittedly, is  not free from  doubt   the  Convention,          after  all, contemplates the possibility of removal when a state-          court proceeding relates to an arbitration agreement and involves          a foreign reinsurer   we believe that the Burford-based  decision                                                    _______          as to  which forum, state  or federal, will  ultimately determine          arbitrability lacks the necessary  high degree of importance that          is demanded.   This conclusion  is scarcely original.   Both  the          Court,  in Thermtron, and the  Congress, in enacting  28 U.S.C.                       _________          1447, have adumbrated that, absent exceptional circumstances, the          determination that  one particular court, rather  than some other          equally qualified court, will adjudicate an issue is not so vital          as to outweigh the interests of the parties and of society in the          swift, efficient  administration of justice.   Indeed,  Thermtron                                                                  _________          and section 1447 serve as vivid reminders that, when remand is at          stake,  the  policies  militating  against  interlocutory  appeal          possess their full vigor.   See generally 14A Charles  A. Wright,                                      ___ _________          et  al.,  Federal Practice  and Procedure     3740 (1985  & Supp.                    _______________________________          1993).                    We hold, therefore, that an order to remand premised on          Burford abstention is not  immediately appealable under the Cohen          _______                                                     _____                                          15          rubric.   In reaching this result, we find ourselves in agreement          with  the Second  Circuit.   See Corcoran,  842 F.2d  at 35.   We                                       ___ ________          expressly  decline  to extend  the  Fifth  Circuit's decision  in          McDermott Int'l v.  Lloyd's Underwriters, 944  F.2d 1199, 1203  &          _______________     ____________________          n.5 (5th Cir.  1991), beyond  the facts there  presented.4   When          all is said and done, in this case, as in Garcia, ___ F.2d at ___                                                    ______          [slip op. at 9],  "we cannot find a `collateral  order' exception          large  enough to  fit  our case  that does  not  swallow up  (and          thereby simply disregard) the general rule."                    3.     The  Federal  Arbitration  Act.     The  Federal                    3.     The  Federal  Arbitration  Act.                           ______________________________          Arbitration Act is the  last source of the Reinsurers'  effort to                                        ____________________               4While  we are  comfortable  with the  result in  McDermott,                                                                 _________          given its facts, some of the language contained in the opinion is          potentially  mischievous.    With  respect, we  think  the  court          overgeneralized by  failing  to  distinguish  between  cause  and          effect.   McDermott  properly found  the district  court's remand                    _________          order  to be appealable under  the collateral order doctrine, but          this  outcome is not dictated merely because the remand order had          the  "effect [of] allow[ing] a state court to decide the question                ______          of  arbitrability."    McDermott,  944  F.2d  at  1203  (emphasis                                 _________          supplied).   Rather, the question  of where the  parties' dispute          regarding arbitration was to be resolved constituted a collateral          issue because the parties had jointly made it a collateral issue,          i.e., they had included a service-of-suit clause in  the contract          ____          and  the court based the remand on its substantive interpretation          of that provision.  See id. at 1201.  The mere fact that a remand                              ___ ___          order  has the effect of deciding  that issues are to be resolved          in a  state court does not mean that, in every case, the identity          of  the forum  is a collateral  issue within the  ambit of Cohen.                                                                     _____          See Corcoran, 842 F.2d  at 35.  After  all, remand orders  always          ___ ________          cause  the disputed issues to  be determined in  state court; and          McDermott's  reasoning,  applied  across  the  board, would  make          _________          virtually all remand orders (save only those which are subject to                    ___          the statutory  bar, see  supra Part II(A))  appealable collateral                              ___  _____          orders   a position to which we cannot subscribe.                                          16          generate an adequate jurisdictional  showing.5  The Act provides,          inter alia,  that an appeal may be taken from an order refusing a          _____ ____          stay  pending   arbitration  or   denying  a  motion   to  compel          arbitration.  See  9 U.S.C.    16(a)(1)(A), (C)  (Supp. V  1992).                        ___          Here, the district court, after  remanding the case, stated  that          it was denying appellants' motions to compel arbitration and stay          the litigation,  without prejudice.   The Reinsurers  endeavor to          appeal from these "denials."  We are unimpressed.                    We think it is evident  that the district court, having          indicated  its intention to remand the case to state court, added          the  "denied  without prejudice"  language  merely  as a  way  of          flagging  that it intended the arbitrability  issue to be decided          in  a state court and that the  federal court, in remanding, took          no  view of arbitrability.   The district  court's remarks, then,          did not deal with the merits of the arbitration question and were          not  arbitrability   denials  of   the  sort  that   the  Federal          Arbitration  Act  makes immediately  appealable.    Compare Asset                                                              _______ _____          Allocation &  Management Co. v.  Western Employers Ins.  Co., 892          ____________________________     ___________________________          F.2d  566, 574  (7th Cir. 1989)  (finding district  court's order          appealable under  Federal Arbitration Act) with  Jeske v. Brooks,                                                     ____  _____    ______          875 F.2d 71, 73  (4th Cir. 1989) (finding district  court's order          inappropriate  for   appeal).     To  hold  otherwise   would  be                                        ____________________               5We  need not consider whether the Enelow-Ettelson doctrine,                                                  _______________          see  Enelow  v. New  York Life  Ins.  Co., 293  U.S.  379 (1935);          ___  ______     _________________________          Ettelson  v. Metropolitan  Life Ins.  Co., 317  U.S. 188  (1942),          ________     ____________________________          might  make  the remand  order  immediately  appealable under  28          U.S.C.   1292(a)(1).  The Court has overruled that line of cases.          See  Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271,          ___  __________________________    _______________          279-88 (1988).                                          17          mechanically to  elevate form over substance, a  practice that we          have consistently spurned.  See,  e.g., United States v. Branble,                                      ___   ____  _____________    _______          925 F.2d 532, 534 (1st Cir. 1991); Maine v. Thomas, 874 F.2d 883,                                             _____    ______          886 (1st Cir. 1989).                    The Reinsurers  cannot achieve a  different result even          if the district court acted with a more meddlesome  intent.  Once          it remanded  the case to a  state forum, the  district court lost          jurisdiction over  the case and, therefore,  lacked the authority          to  issue substantive  orders  of the  sort  that the  Reinsurers          suggest were issued here.  See,  e.g., In re La Providencia  Dev.                                     ___   ____  __________________________          Corp., 406 F.2d  251, 252-53  (1st Cir. 1969);  see also  General          _____                                           ___ ____  _______          Elec.  Co. v. Byrne,  611 F.2d 670,  672-73 (7th Cir.  1979) (per          __________    _____          curiam) (stating  that a "transfer order  deprives the transferor          court of jurisdiction  until the  case is returned  to it");  cf.                                                                        ___          Moore v. Permanente Medical  Group, Inc., 981 F.2d 443,  445 (9th          _____    _______________________________          Cir. 1992) (holding that a district court possessed the authority          to award attorneys'  fees after remanding only because  the award          of fees  was specifically  authorized by  the remand  statute and          was, therefore, "collateral  to the decision  to remand"); In  re                                                                     ______          Spillane, 884 F.2d 642,  645-46 (1st Cir. 1989) (similar,  but in          ________          venue-transfer context).  Put another way, absent an emergency or          some other  extraordinary circumstance, the district  court could          only  have issued  substantive orders  necessary to  reaching the          decision  to remand.6   See,  e.g., Karl  Koch, 838  F.2d  at 659                                  ___   ____  __________                                        ____________________               6The  court's power to  issue such orders  is derivative of,          and implicit in, its power to remand.                                          18          (remanding  because court interpreted a forum-selection provision          as  requiring  parties to  litigate  in  state court);  Pelleport                                                                  _________          Investors, Inc.  v. Budco Quality  Theatres, Inc., 741  F.2d 273,          _______________     _____________________________          275 (9th Cir. 1984) (similar).                    In  the last analysis,  whether or not  we construe the          district  court's   remarks  as  rulings,  the   bottom  line  is          unaffected:  the denials  have no legal effect aside  from making          clear the dimensions  of the  issues that the  court proposed  to          leave unadjudicated.                    4.  Summary.   To recapitulate, under the circumstances                    4.  Summary.                        _______          of  this litigation, the district  court's remand order  is not a          final  judgment; it is not an  appealable collateral command; and          its  accouterments   are  not   appealable   under  the   Federal          Arbitration Act.  Because the Reinsurers have  been wholly unable          to demonstrate a cognizable  hook on which appellate jurisdiction          may  be  hung,  their  appeal  must  be  dismissed  for  want  of          jurisdiction.7          III.  THE PETITION FOR MANDAMUS          III.  THE PETITION FOR MANDAMUS                    Anticipating  problems  in  topping the  jurisdictional          hurdles,  the Reinsurers also seek to proceed by way of mandamus.          They ask  that we  issue a writ  requiring the district  court to          vacate  the  remand order,  accept  jurisdiction  over the  case,          compel  arbitration of a  portion of the  underlying dispute, and                                        ____________________               7Inasmuch as we  hold that  there is  no affirmative  source          conferring   jurisdiction  over   the  appeal   essayed  by   the          Reinsurers, we need not address any of Doughty's other challenges          to this court's appellate jurisdiction.                                          19          stay proceedings as to the remainder.  We see no  reason to honor          the request.                    Although federal appellate  courts have power to  issue          prerogative writs that  are "necessary or  appropriate in aid  of          their . .  . jurisdiction[],"  28 U.S.C.    1651(a) (1988),  that          power  must  be  used stintingly  and  brought  to  bear only  in          extraordinary  situations.   See Allied  Chem. Corp.  v. Daiflon,                                       ___ ___________________     ________          Inc., 449 U.S. 33, 34 (1980)  (per curiam); Recticel, 859 F.2d at          ____                                        ________          1005.   Thus, prerogative writs, although  frequently sought, are          seldom issued.   To succeed  in the hunt,  a writ-seeker  usually          must demonstrate that the  challenged order is palpably erroneous          and that he faces  some special risk  of irreparable harm.8   See                                                                        ___          In  re  Pearson,  990  F.2d  653,  656  &  n.4  (1st  Cir.  1989)          _______________          (collecting cases).  Given the stringency of this standard, it is          unsurprising that "[i]nterlocutory procedural orders . . . rarely          will satisfy th[e] precondition  for mandamus relief."  Recticel,                                                                  ________          859 F.2d  at 1006; accord Pearson,  990 F.2d at 656.   We explain                             ______ _______          briefly why this case is no exception to the rule.                    In  the first  place,  "mandamus [generally]  will  not          issue to control exercises of discretion."  Recticel, 889 F.2d at                                                      ________          1006; accord  DeBeers Consolidated Mines, Ltd.  v. United States,                ______  ________________________________     _____________          325 U.S. 212,  217 (1945); In re  Bushkin Assocs., Inc. 864  F.2d                                     ____________________________                                        ____________________               8We   have,   on   infrequent   occasions,   relaxed   these          requirements and exercised our powers of "advisory mandamus" when          matters of great public import are involved.   See In re Justices                                                         ___ ______________          of the  Supreme Court of Puerto  Rico, 695 F.2d 17,  25 (1st Cir.          _____________________________________          1982).  The Reinsurers have not urged us to use advisory mandamus          here and, at any rate, this is plainly not a suitable case.                                          20          241, 245  (1st Cir.  1988).  Burford-based  abstention decisions,                                       _______          while more closely  cabined under the current  legal regime, see,                                                                       ___          e.g., Fragoso, 991 F.2d at 883-86, still contain  a discretionary          ____  _______          element.   See,  e.g.,  General Glass  Indus.  Corp.  v.  Monsour                     ___   ____   ____________________________      _______          Medical Found., 973  F.2d 197,  203 (3d Cir.  1992): New  Orleans          ______________                                       ____________          Pub. Serv.,  Inc. v. New  Orleans, 798  F.2d 858,  862 (5th  Cir.          _________________    ____________          1977); Richardson v.  City, Etc. of  Honolulu, 759 F.Supp.  1477,                 __________     _______________________          1483 (D.Haw. 1991).  It follows  that, to the degree the district          court  understood controlling  abstention law  and exercised  its          discretion within that known  law, this case is a  poor candidate          for  mandamus relief.  See  Bushkin, 864 F.2d  at 245 (explaining                                 ___  _______          that  "mandamus  is  generally  thought  an  inappropriate  prism          through  which  to inspect  exercises  of judicial  discretion").          Even  misuses  of discretion  will  not  provoke mandamus  relief                _______          absent a  clear usurpation of  power or some  similarly egregious          circumstance.  See id.                         ___ ___                    In  the second place,  we cannot say  that the district          court's  decision in  this case  represents a  palpably erroneous          application of Burford  abstention law.   Although the radius  of                         _______          permissible Burford  abstention has  shrunk in recent  years, see                      _______                                           ___          New Orleans Pub.  Serv., Inc. v. City Council of New Orleans, 491          _____________________________    ___________________________          U.S. 350,  360-64  (1989);  Fragoso, 991  F.2d  at  882-86,  this                                      _______          litigation  involves  a  number  of  novel  questions,  including          whether  the complex  system  Massachusetts has  enacted for  the          liquidation of domestic insurance companies is the sort of scheme          that warrants  serious consideration  as a basis  for abstention.                                          21          After reviewing the  record, we  can say only  that the  district          court's Burford-based  decision is possibly erroneous    not that                  _______          it is palpably  so.  That is not enough  to satisfy the customary          precondition  for mandamus relief.  See Bushkin, 864 F.2d at 245.                                              ___ _______          And, moreover,  mandamus seems  an awkward vehicle  for resolving          the doubtful  issues that  permeate the  Burford  equation.   See                                                   _______              ___          Amoco Petroleum,  964 F.2d  at 713 (collecting  cases); Corcoran,          _______________                                         ________          842  F.2d at 36-37 (declining, in similar circumstances, to issue          a writ of mandamus).                    We note, too, that the record reveals several potential          non-Burford-based reasons  for remanding this case  which, on the              _______          surface,  appear to  possess  merit.   It  is a  prerequisite  to          mandamus  relief that  the ruling  below be  "palpably improper,"          LaBuy v.  Howes Leather Co., 352 U.S. 249, 256 (1957), and that a          _____     _________________          suitor's entitlement to the  claimed relief be plain as  a matter          of law, Pearson, 990 F.2d at 657  & n.4.  We do not believe these                  _______          criteria  are  satisfied  if  the  disputed  disposition,  albeit          premised   on  a  doubtful   ground,  is   nevertheless  probably          sustainable  on  an  alternative  ground.    The  case  before us          illustrates the point:    whatever  may be said  of the  district          court's   Burford   rationale,   the  outcome   of   the  federal                    _______          adjudicative process   retransmitting the litigation to the state          court     cannot  by  any  stretch  be   classified  as  palpably          erroneous.                    Also, we  descry no  special risk of  irreparable harm.          The Reinsurers' rhetoric does not change the fact that the remand                                          22          order leaves the  issue of arbitrability  unresolved.  The  state          court will decide that issue, and the Reinsurers will have rights          to  appeal within that  system should they  so elect.   While the          Reinsurers may prefer  that a federal forum determine the result,          they  have  offered  no  reason  why  the   frustration  of  this          preference  is likely  to  cause irreparable  harm.   Cf.,  e.g.,                                                                ___   ____          Garcia,  ___ F.2d  at  ___ [slip  op.  at 10]  (finding  mandamus          ______          appropriate   where  a  "critical   legal  determination"  would,          following remand, be insulated from "meaningful review").                    There is an overriding consideration  that touches upon          all the above.  A court that is asked to issue a writ of mandamus          is itself  invested with considerable  discretion.   See Kerr  v.                                                               ___ ____          United  States District Court, 426  U.S. 394, 403  (1975).  Given          _____________________________          the  facts  and posture  of this  dispute,  the wise  exercise of          judicial discretion strongly favors continuing to employ mandamus          sparingly,  Recticel, 859 F.2d at 1005; see also Boreri, 763 F.2d                      ________                    ___ ____ ______          at  26  (warning   that  "the  currency  [of  mandamus]   is  not          profligately  to be spent"), and allowing this case to proceed in          state  court.    The Convention,  which  is  the  sole source  of          ostensible  federal jurisdiction, applies neither to the numerous          reinsurance contracts that do not contain arbitration clauses nor          to  those   underwritten  by   the  several   domestic  insurance          providers.  Most  of the years in controversy  are years in which          the reinsurance  arrangements are  not even arguably  affected by          arbitration clauses.  The net result is that,  should we heed the          Reinsurers' pleas, the litigation  would be split between federal                                          23          and state court.                     Further,  the  crux  of the  controversy  involves  the          contested  interpretation  of   contract  provisions   presenting          chiefly  matters of  state law.   Claims  have also  been brought          under Massachusetts  unfair trade  practice statute.   The larger          context in which the  litigation is set concerns the  business of          insurance,  which the  McCarran-Ferguson  Act, 21  U.S.C.    1012          (1988), unequivocally declares  to be a state-law preserve.   The          Commonwealth, through its Insurance Commissioner, is a real party          in  interest.   In  all, it  likely  understates the  obvious  to          acknowledge  that  "state   issues  substantially   predominate."          United  Mine Workers  of  America v.  Gibbs,  383 U.S.  715,  726          _________________________________     _____          (1966).    When  these features  are  coupled  with  the host  of          significant  questions concerning  the propriety  of  the removal          order,  it would  be rashly  injudicious for  us to  exercise our          discretion to  sponsor mandamus,  thereby wresting the  suit from          its natural habitat and abetting its balkanization.                    We  need  go   no  further.    It   is  apodictic  that          "[m]andamus cannot be allowed to become a handy substitute for an          otherwise unavailable interlocutory  appeal."  Bushkin,  864 F.2d                                                         _______          at 265.  Thus, a party seeking the issuance of a prerogative writ          bears a heavy burden.   The Reinsurers have neither  carried this          burden nor  persuaded  us that  we should  gratuitously oust  the          state court  of jurisdiction over part of the litigation, leaving          the remainder to linger  there.  The petition for  mandamus must,          therefore, be denied.                                          24          IV.  CONCLUSION          IV.  CONCLUSION                    To summarize,  although the statutory bar,  28 U.S.C.            1447(d), does not pertain, the Reinsurers cannot clear  the other          jurisdictional  hurdles that  dot the  path to  federal appellate          relief.  We lack jurisdiction over  their appeal and we also lack          a cognizable basis for issuing a prerogative writ.                    The  appeal   is  dismissed   for  want   of  appellate                    _______________________________________________________          jurisdiction.  The petition for issuance of a writ of mandamus is          ____________   __________________________________________________          denied.  Costs are to be taxed in favor of respondent-appellee.          ______   _____________________________________________________                                          25
