                              UNITED STATES COURT OF APPEALS
                                          Tenth Circuit
                               Byron White United States Courthouse
                                        1823 Stout Street
                                     Denver, Colorado 80294
                                         (303) 844-3157
Patrick J. Fisher, Jr.                                                                  Elisabeth A. Shumaker
Clerk                                                                                   Chief Deputy Clerk

                                                June 17, 1997


        TO:      All recipients of the captioned opinion

        RE:      95-2224, Flores v. Long
                 April 1, 1997


                 Please be advised of the following correction to the captioned decision:

               In the second to last sentence of the opinion, the first cite in the sentence should
        read “§ 1447(c)” instead of “§ 1446(c).” Please make the correction.

                                                           Very truly yours,

                                                           Patrick Fisher, Clerk



                                                           Susie Tidwell
                                                           Deputy Clerk
                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                       PUBLISH
                                                                              APR 1 1997
                       UNITED STATES COURT OF APPEALS
                                                                           PATRICK FISHER
                                                                                 Clerk
                                    TENTH CIRCUIT



 DENNIS FLORES,

              Plaintiff-Appellee,

       v.                                                    No. 95-2224

 JIM LONG, Agent; PAUL SENA, Deputy
 Sheriff; A. E. ARCHIBEQUE; EDWARD
 APODACA, Patrolman; DUDLEY
 LLOYD; RICHARD C. DE BACA,
 individually and in their official
 capacities; DEPARTMENT OF PUBLIC
 SAFETY, New Mexico State Police,

              Defendants-Appellants.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW MEXICO
                       (D.C. No. CIV 94-0731 LH/LFG)


Donald C. Schutte, Albuquerque, New Mexico, for Defendants-Appellants.

Ilene Chase, Glorieta, New Mexico, for Plaintiff-Appellee.


Before LUCERO, LOGAN and MURPHY, Circuit Judges.


LOGAN, Circuit Judge.


                                            I
       Plaintiff Dennis Flores filed this action in state court against defendants New

Mexico Department of Public Safety, New Mexico State Police, and six named law

enforcement officers in their individual and official capacities for damages under 42

U.S.C. § 1983 alleging they violated his First, Fourth, and Fourteenth Amendment rights.

Plaintiff also asserted state tort claims for excessive force, false arrest, and malicious

prosecution.

       After removing the action to federal court under 28 U.S.C. § 1441 defendants

moved for summary judgment. The district court, however, determined that the Eleventh

Amendment precluded federal court jurisdiction over claims against the state and state

officials in their official capacities and that the New Mexico Tort Claims Act did not

waive this immunity. See N.M. Stat. Ann. §41-4-4(F). The district court then sua sponte

found that, lacking subject matter jurisdiction over some of the claims, it did not have

original jurisdiction of the “civil action” as required for removal under § 1441(a);

therefore it remanded the entire case to state court. Flores v. Long, 926 F. Supp. 166 (D.

N.M. 1995). Defendants ask us to review that determination. But because the district

court remand order was based on a lack of subject matter jurisdiction, we are barred from

reviewing the remand order either through appeal or mandamus.1

                                              II


       1
         If we determine the remand order is reviewable but not appealable because it is
not a final order, defendants ask that we construe their appeal as an application for a writ
of mandamus.

                                               2
       The threshold question is whether we have jurisdiction to review the district

court’s remand order despite the provision of 28 U.S.C. § 1447(d) that “[a]n order

remanding a case to the State court from which it was removed is not reviewable on

appeal or otherwise” (with an exception for civil rights cases not applicable here).

Although on its face § 1447(d) appears to preclude appellate review of all remand orders,

the Supreme Court has ruled that § 1447(d) bars review only if the district court remands

on grounds permitted by § 1447(c). Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

336, 340-41, 351 (1976) (remand order based on crowded docket reviewable through

mandamus because it was based on grounds not set out in § 1447(c)).

       When Thermtron was decided, § 1447 provided that the district court shall remand

a case if “the case was removed improvidently and without jurisdiction.” Section 1447

has since been amended to delete the reference to “improvident removal,” and to add the

requirement that remand motions based on defects in removal procedure be made within

thirty days. It now provides:

       A motion to remand the case on the basis of any defect in removal
       procedure must be made within 30 days after the filing of the notice of
       removal under section 1446(a). 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

       2
        “These changes reflect a congressional intent to delete improvident removal as
an unreviewable basis for remand, . . . when a motion to remand based on such
improvident removal is made outside the 30-day time limit.” In re Shell Oil Co., 932 F.2d
                                                                                  (continued...)

                                               3
       Congress did not amend § 1447(d), thus the mandate continues that a remand order

cannot be reviewed if it rests on § 1447(c). This rule “places a high premium on

determining whether remand rests on § 1447(c), a task that is not always easy to

perform.” 16 Charles A. Wright et al., Federal Practice and Procedure § 3933.1 (2d ed.

1996). In the instant case there was no motion to remand for a defect in removal

procedure. Thus, we must determine whether the district court remanded for “lack of

subject matter jurisdiction” under § 1447(c). If it did, we may not review the remand

order. Sheet Metal Workers Int’l Ass’n v. Seay, 693 F.2d 1000, 1005 (10th Cir. 1982)

(remand order not reviewable even if “the district court had employed erroneous

principles in concluding that it was without jurisdiction”), aff’d on reh'g, 696 F.2d 780

(10th Cir. 1983) (quotations omitted).

       The district court referred to both “subject matter jurisdiction” and §1447(c) in the

remand order. Mere mention of § 1447(c) or the “magic words” of subject matter

jurisdiction, however, do not automatically render a remand order nonreviewable under

§ 1447(d). Rather, “powerful policy considerations and persuasive decisional authority

support our power--and responsibility--to look past contextually ambiguous allusions and

even specific citations to §1447(c) to determine by independent review of the record the

actual grounds or basis upon which the district court considered it was empowered to

remand.” Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1450 (4th Cir. 1996); see also

       (...continued)
       2

1518, 1520 (5th Cir. 1991), cert. denied, 502 U.S. 1049 (1992).

                                             4
Kunzi v. Pan Am. World Airways, Inc., 833 F.2d 1291, 1293-94 (9th Cir. 1987) (although

district court cited § 1447(c) appellate court inquired further as to actual basis of remand).

       In its remand order the district court found it lacked subject matter jurisdiction

over some of plaintiff’s claims because of defendants’ Eleventh Amendment immunity.

Flores, 926 F. Supp. at 168; see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

100-103 (1984) (Eleventh Amendment bars suit for damages against state in federal court

unless state unequivocally waives immunity or Congress does so by statute); Kentucky v.

Graham, 473 U.S. 159, 169-70 (1985) (suit against state official in official capacity is suit

for damages against state and barred by Eleventh Amendment). Thus, the court was

required to remand those claims to state court; it believed they constituted a substantial

portion of plaintiff’s claims.

       Whether the Eleventh Amendment is an affirmative defense or a jurisdictional bar

which can nonetheless be waived is not clear. In Pennhurst, the Court discussed

immunity as a “jurisdictional bar”; however, the Court has never determined whether

Eleventh Amendment immunity “is jurisdictional in the sense that it must be raised and

decided by this Court on its own motion.” Patsy v. Board of Regents, 457 U.S. 496, 516

n.19 (1982). In Mascheroni v. Board of Regents of the University of California, 28 F.3d

1554, 1556-57 (10th Cir. 1994), we characterized the Eleventh Amendment as “a

constitutional limitation on the jurisdiction of Article III courts,” and noted the split in the

circuit cases on whether a court was required to raise the issue sue sponte. Without


                                               5
resolving whether it was permissive or mandatory we did raise the Eleventh Amendment

jurisdictional issue sua sponte and ordered dismissed for “lack of jurisdiction” a claim

against a state agency under the New Mexico Tort Claims Act. Id. at 1560. Thus the

district court’s order finding the claims against the state and other defendants in their

official capacities were barred by Eleventh Amendment immunity was a good faith

finding that it lacked subject matter jurisdiction.

       The district court also addressed “its jurisdiction to consider the remainder of

Plaintiff’s claims that do not implicate the Eleventh Amendment.” Flores, 926 F. Supp. at

168.3 The district court observed that 28 U.S.C. § 1441 “only authorizes the removal of

civil actions that are within the original jurisdiction of the district court,” id.; 28 U.S.C.

§ 1441(a) (1994), and then noted the split in the circuits of the meaning of “civil action”

under §1441. The district court adopted the “line of authority . . . [that] holds that ‘civil

action’ refers to the entirety of the case filed in state court;” thus “‘if even one claim in an

action is jurisdictionally barred . . . then, as a consequence of §1441(a), the whole action

cannot be removed to federal court.’” Flores, 926 F. Supp. at 168 (quoting Frances J. v.

Wright, 19 F.3d 337, 340-342 (7th Cir.), cert. denied, 115 S. Ct. 294 (1994); see also

McKay v. Boyd Constr. Co., 769 F.2d 1084 (5th Cir. 1985). The district court declined to



       3
         The court stated that ordinarily it would have original jurisdiction over plaintiff’s
§ 1983 claims against the individual defendants in their individual capacities and
supplemental jurisdiction over plaintiff’s state law claims against those defendants.
Flores, 926 F. Supp. at 168.

                                                6
follow the contrary cases which hold that the Eleventh Amendment presents “a

jurisdictional bar to claims, not to entire cases which involve claims implicating the

[E]leventh [A]mendment.” Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 337 (6th

Cir. 1990) (rejecting a “mechanical” interpretation of § 1441 and reading McKay

narrowly); see also Texas Hosp. Ass’n v. National Heritage Ins. Co., 802 F. Supp. 1507,

1514-16 (W.D. Tex. 1992) (reasoning that if a plaintiff originally filed a civil action in

federal court the court could dismiss the claims barred by the Eleventh Amendment and

retain jurisdiction of the remaining claims; § 1447 does not preclude remanding “bits and

pieces of cases,” and the Supreme Court has affirmed the right to have federal rights

vindicated in a federal court).

       The district court bolstered its literal reading of § 1441 with policy considerations

including preserving a plaintiff’s choice of forum by preventing defendants from splitting

the case and prudential concerns including res judicata, abstention, and use of judicial

resources. Flores, 926 F. Supp at 169. The court concluded by finding:

       The Court is aware that this case has been on the federal docket for nearly
       one year and that discovery is complete. However, the Court lacks subject
       matter jurisdiction over a substantial portion of Plaintiff’s claims. These
       claims must be remanded in any event. The principles outlined above are
       best served, therefore, by remanding the entire case.

Id. at 170. The remand order was based to a fair degree upon the court’s finding that it

lacked subject matter jurisdiction to hear the case. Therefore, the district court remand

was pursuant to § 1447(c) and under § 1447(d) we have no jurisdiction to review the


                                              7
remand order. For the reasons stated we DISMISS the appeal and DENY defendants’

application for a writ of mandamus.




                                        8
