PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LISA T. KENNEDY,

Plaintiff - Appellee,

v.	No. 00-1507
CLEMENCE LUBAR,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 00-M-2301)

Andrew W. Volin , Sherman & Howard, Denver, Colorado (Raymond M. Deeny , Sherman & Howard, Colorado Springs, Colorado, with him on the briefs), for Defendant-Appellant.

Curtis L. Kennedy, Denver, Colorado, for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, and McKAY and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiff-Appellee Lisa T. Kennedy brought suit against Defendant- Appellant Clemence Lubar in Colorado state court, asserting state common law claims for "[t]ortious [i]nterference with [e]mployment [r]elations" and tortious interference with "[p]rospective [e]mployment [r]elations." Compl. at 14, App. to Br. of Def.-Appellant ("App.") at 17. Kennedy was employed as a part-time pharmacist in Store 100 of the King Soopers chain of grocery stores, and Lubar was her pharmacy manager. Kennedy alleges that Lubar engaged in intentional, malicious and willful misconduct which allegedly caused her termination from Store 100 and her inability to obtain subsequent employment at other King Soopers stores.

Lubar removed the case to the United States District Court for the District of Colorado based on her assertion that Kennedy's state law claims were pre- empted by § 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), and that the federal district court therefore had original subject matter jurisdiction over Kennedy's claims. Notice of Removal at ¶¶ 4 and 8, App. at 23-24. Thereafter, Lubar filed a motion to dismiss Kennedy's state law claims, also on the basis of federal preemption under § 301. Mot. to Dismiss at ¶¶ 3 and 19, App. at 49 and 60.

Kennedy responded with a motion for remand, asserting that the federal district court lacked jurisdiction over her state law claims because they were not pre-empted by § 301. Mot. for Remand at 1 and 8, App. at 137 and 144. The district court agreed and remanded the case, stating as follows:

The defendant filed a notice of removal on November 22, 2000, asserting that the claims are pre-empted by the Labor Management Relations Act, 29 U.S.C. § 185. The plaintiff filed a motion for remand on November 28, 2000. Upon careful review of the allegations of the complaint, it is clear that these are tort claims against an individual and not against the employer for a violation of any collective bargaining agreement or under any federal law.

Order of Remand at 1, App. at 146.

Thereafter, Lubar simultaneously filed a Petition for Writ of Mandamus and a Notice of Appeal. A two-judge panel of this court denied Lubar's Petition for Writ of Mandamus, holding that although this court had jurisdiction to review the district court's remand, the appropriate vehicle for redress was a direct appeal. In re Clemence Lubar, No. 00-1504, Order at 2 (10th Cir. Jan. 18, 2001), App. at 173. On appeal, Lubar asks this court to vacate the district court's Order of Remand, and to instruct the district court to dismiss Kennedy's claims with prejudice on the basis of federal pre-emption under § 301. Br. of Def.-Appellant at 30. Although Lubar has made a very strong case for pre-emption, we must nonetheless dismiss the appeal because 28 U.S.C. § 1447(d) absolutely precludes us from reviewing the district court's Order of Remand.1

28 U.S.C. § 1447(d) states that, subject to certain exceptions not applicable here, "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. . . ." This strong statutory limitation on appellate review applies, however, only to remands based on 28 U.S.C. § 1447(c). Albertson's, Inc. v. Carrigan, 982 F.2d 1478, 1479-80 (10th Cir. 1993). See also Dalrymple v. Grand River Dam Auth., 145 F.3d 1180, 1184 (10th Cir. 1998). Section 1447(c) specifically allows district courts to order remand if there has been a "defect in removal procedure," or if it determines, at any time prior to final judgment, that it "lacks subject matter jurisdiction." If a district court orders remand on either of these grounds, § 1447(d) absolutely prohibits appellate review of the order, and we adhere firmly to this prohibition even where we believe that the district court was plainly incorrect. Archuleta v. Lacuesta, 131 F.3d 1359, 1363 (10th Cir. 1997).

In determining whether or not a district court remanded the case on the grounds provided in § 1447(c), "we must independently review the record to determine the actual grounds upon which the district court believed it was empowered to remand." Dalrymple, 145 F.3d at 1184. "An explicit reference to § 1447(c) does not automatically render a remand order non-reviewable. . . . Nor does the absence of such a reference automatically confer appellate jurisdiction over a remand order." Id. (citation omitted). Thus, we must consider a district court's order of remand as a whole, reviewing it in its entirety and considering the motions and issues actually before the district court.

Applying these standards to the current case, it is clear that the district court's sole basis for ordering remand was its determination that it lacked subject matter jurisdiction over Kennedy's state law claims. Although the district court did not expressly use the term "subject matter jurisdiction" in its Order of Remand, the only fair reading of that order is that the district court's decision was based entirely on its determination that Kennedy's state tort claims were not pre-empted by § 301, and that, as such, there was no basis for the court to exercise jurisdiction over her lawsuit. The district court specifically found that Kennedy's claims against her supervisor, as an individual, did not allege "a violation of any collective bargaining agreement or under any federal law." Order of Remand at 1, App. at 146 (emphasis added). Implicit in this finding is a determination that it lacked subject matter jurisdiction over Kennedy's claims. Moreover, Kennedy's motion for remand itself asserted that remand was required only because the federal court lacked subject matter jurisdiction where her state law claims were not pre-empted by § 301.2

A complete and accurate reading of the Order of Remand and the record before us makes it perfectly clear that the district court's order

clearly [did] not reflect the typical nonjurisdictional determination involving a discretionary remand of supplementary or pendent claims, venue, abstention, comity or the waiver of opportunity to challenge procedurally irregular removal. Instead, the order[] address[ed] key issues directly related to whether the district court could have exercised subject matter jurisdiction over the case[]–the presence of a federal question on the face of the plaintiffs' complaint[] and/or the presence of a federal question in the form of a colorable federal . . . defense.

Dalrymple, 145 F.3d at 1185. As such, we conclude that the district court's Order of Remand falls squarely within the provisions of § 1447(c), and that § 1447(d) precludes us from reviewing that order on appeal.

At oral argument, however, Lubar asserted that we should not apply the prohibitions of § 1447(d) in this case, arguing that principles of "law of the case" and waiver preclude us from dismissing her appeal. We address each of Lubar's contentions in turn.

Lubar's first contention is that because the mandamus panel already addressed the discrete issue of appellate jurisdiction in this case, basic "law of the case" principles preclude us from revisiting it on appeal. Although we recognize that the mandamus panel already decided that we could exercise jurisdiction over Lubar's appeal, this decision was based entirely on its erroneous finding that the district court's remand order was not grounded in § 1447(c),3 and we disagree with Lubar's position that "law of the case" principles prevent us from revisiting the jurisdictional question.

"'[T]he law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1034 (10th Cir. 2000) (quoting United States v. Monsisvais, 946 F.2d 114, 115 (10th Cir. 1991)) (further quotations omitted). "Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit," 18 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 4478, at 788 (1981) ("Wright & Miller"). Such rules are commonly applied to prevent an appellate court from revisiting or reconsidering "matters resolved on a prior appeal," and it is not uncommon for "appellate court . . . [to] adhere[] to prior rulings as the law of the case, at times despite substantial reservations as to the correctness of the ruling." Id.

However, law of the case principles apply only to decisions on the actual merits. Wilmer v. Board of Cty. Comm'rs, 69 F.3d 406, 409 (10th Cir. 1995) ("Law of the case principles do not bar a district court from acting unless an appellate decision has issued on the merits of the claim sought to be precluded.") (quotations omitted). See also Wright & Miller § 4435, at 329. Because orders denying a petition for mandamus are most frequently denied as a result of the special limitations inherent in the writ itself, and not on the merits, such denials are not ordinarily given "law of the case" effect, and the parties are not precluded from raising the issue in a subsequent appeal.4 United States v. Dean, 752 F.2d 535, 541 (11th Cir. 1985). "Law of the case" principles are typically applied only to those mandamus decisions actually deciding the case on the merits, United States v. Holland, No. 94-5234, 1995 WL 539589 at *1 (10th Cir. Sept. 11, 1995) (holding that "an appellate court's denial of a mandamus petition will not preclude further consideration of the issue raised therein under res judicata or law of the case, unless the denial was on the merits"),5 or to those discrete issues that were actually adjudicated by the mandamus panel. Wilmer, 69 F.3d at 410 n. 3 (recognizing that "jurisdictional questions, like other issues, must actually be decided, explicitly or implicitly, before law of the case may be invoked). See also Acree v. Air Line Pilots Ass'n, 390 F.2d 199, 203 (5th Cir. 1968) (holding that even non-merit based decisions are "conclusive" as to those "matters actually adjudged").

In any event, law of the case principles are not absolute. "Although courts are often eager to avoid reconsideration of questions once decided in the same proceeding, it is clear that all federal courts retain power to reconsider if they wish." Wright & Miller § 4478, at 789. We have routinely recognized that the law of the case doctrine is "discretionary, not mandatory," and that the rule "'merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power.'" Stifel, Nicolaus & Co., v. Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir. 1996) (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912) (Holmes, J.)). See also Pittsburg & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1536 n. 4 (10th Cir. 1995). Issues such as "subject matter jurisdiction" or "appellate jurisdiction" may be "particularly suitable for reconsideration," Wright & Miller § 4478, at 799 & n. 32, and our ability to revisit prior jurisdictional determinations is particularly strong where the prior panel's decision is found to be clearly erroneous or contrary to the clear mandate of the law. Watchman, 52 F.3d at 1536 n. 4 (recognizing that "circumstances justifying a departure from law of the case are narrow," but noting that such departure is justified where the original decision was clearly erroneous) (quotation omitted).6

Applying these basic "law of the case" principles, and in light of the strong legislative mandate absolutely precluding our review of remand orders issued on the grounds articulated in § 1447(c), we exercise our discretion to re-examine the mandamus panel's prior jurisdictional determination and revisit the jurisdictional question. In doing so, we conclude that the mandamus panel's finding was clearly erroneous, and that the only reasonable reading of the district court's order is that it remanded the case solely because it found that Kennedy's claims were not pre-empted and that, as such, there was no federal subject matter jurisdiction. We find absolutely no evidence in the record before us to support the mandamus panel's conclusion that the remand was based on considerations other than subject matter jurisdiction. To the contrary, as indicated above, Kennedy's motion for remand asserted only arguments based on the district court's lack of federal subject matter jurisdiction, and no other ground for remand was asserted or considered below.7 Indeed, the mandamus panel's order itself does not provide any suggestion about what other grounds the district court may have had for its remand order,8 and no such grounds appear anywhere in the record. The mandamus panel's jurisdictional conclusion was clearly erroneous, and law of the case principles do not prevent us from dismissing this appeal.9

Lubar's second contention is that Kennedy affirmatively waived the issue of jurisdiction and consented to our review by expressly adopting the mandamus panel's holding that the district court's Order of Remand was appealable "under 28 U.S.C. § 1291." Br. of Pl.-Appellee at 1. Again, we disagree with Lubar's contention.

Although Lubar is correct that we ordinarily do not consider matters not affirmatively raised by the parties in their opening briefs, State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n. 7 (10th Cir. 1994), this general rule does not apply to jurisdictional questions. Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993) (noting that the court will address new issues on appeal where questions of the court's jurisdiction are raised). We have routinely recognized our ability to raise the question of appellate jurisdiction sua sponte,10 and parties cannot circumvent constitutional and statutory limitations to create jurisdiction where it does not otherwise exist. Insurance Corp. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (holding that "no action of the parties can confer subject-matter jurisdiction upon a federal court," and that principles of wavier and estoppel do not apply). See also Stubblefield v. Windsor Cap. Grp., 74 F.3d 990, 993 n. 3 (10th Cir. 1996) (holding that a party's concession of jurisdiction has no legal effect "because where our jurisdiction is not authorized by statute, it cannot be manufactured by consent").

As a federal court of appeals, we are a court of limited jurisdiction and must refrain from exercising jurisdiction unless we are certain that such jurisdiction has been granted us by Congress. See Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1182 (10th Cir. 2000) ("In light of the limited subject matter jurisdiction granted to the federal courts by Congress, we have a duty to satisfy ourselves that jurisdiction is appropriate.")11 Likewise, we are absolutely prohibited from exercising jurisdiction where it is expressly forbidden by Congress. See Basso v. Utah Pwr. & Lt. Co., 495 F.2d 906, 909 (10th Cir.1974) ("A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.") (emphasis added).12 Section 1447(d) absolutely forbids us from reviewing the district court's Order of Remand in this case, and we cannot rely on principles of waiver to create appellate jurisdiction where it simply does not exist.

Based on the foregoing, we hold that we lack jurisdiction to review the district court's Order of Remand.13 Accordingly, this appeal is DISMISSED.