Gloria GONZALEZ-GARCIA, et al., Plaintiffs, Appellees, v. WILLIAMSON DICKIE MANUFACTURING CO., Defendant, Appellant. In re WILLIAMSON DICKIE MANUFACTURING CO., et al., Petitioners, 99 F.3d 490

PER CURIAM. Williamson Dickie Manufacturing Co. (“Williamson Dickie”) has filed both a notice of appeal and a petition for writ of mandamus from a district court order remanding a case to a Commonwealth of Puerto Rico court from which it had been removed. We conclude that this court lacks jurisdiction to review the order of remand, either by way of appeal or mandamus, and therefore summarily dismiss the appeal and deny the petition for mandamus. Because the issue is a recurring one, a brief opinion explaining our result may be useful for guidance in the future. I.

In 1993, Williamson Dickie dismissed some employees when it decided to close its plants in Puerto Rico and transfer its operations outside of Puerto Rico. In November 1994, 117 dismissed employees filed suit in a Commonwealth Court, claiming entitlement to severance pay in accordance with Puerto Rico Severance Law Statute, Law 80 of May 30, 1976, P.R. Laws Ann. tit. 29, § 185 et seq. (1985) (hereinafter “Law 80”). They also claimed that, in retaining only younger employees until the operations were completely shut down, Williamson Dickie violated the Commonwealth’s law against age discrimination.

Williamson Dickie removed the suit to the federal district court on the ground that it was a civil action arising under the laws of the United States, i.e., that it presented a federal question. Specifically, Williamson Dickie alleged that, although the plaintiffs’ complaint did not mention the Employee Retirement Income Security Act of 1974 (“ERISA”), the suit, in fact, was a claim for benefits under an ERISA plan, falling under ERISA’s civil enforcement provision, 29 U.S.C. § 1132(a)(1)(B), and thus was removable to federal court.

Plaintiffs responded with a motion to remand back to the Commonwealth Court, contending that their complaint was not a claim for benefits under an ERISA plan, but rather was a claim for “indemnity for wrongful discharge” pursuant to Law 80. Williamson Dickie then moved to dismiss the plaintiffs’ severance pay claim, arguing that this claim was preempted by ERISA. Plaintiffs filed an opposition to this motion to dismiss, reiterating their contention that their claim for severance pay was not ERISA-based.

In April 1996, the district court issued an opinion, in which it concluded that Law 80 was not an employee benefit plan under ERISA. It opined that Law 80 more closely resembled the “one-time, lump-sum payment triggered by a single event requir[ing] no administrative scheme,” found not preempted by ERISA in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12, 107 S.Ct. 2211, 2218, 96 L.Ed.2d 1 (1987), rather than the more extensive arid complex administrative obligations imposed by the Massachusetts “tin parachute” statute that this court found preempted by ERISA in Simas v.

Quaker Fabric Corp. of Fall River, 6 F.3d 849 (1st Cir.1993). The district court concluded, therefore, that the cause of action under Law 80 was not preempted by ERISA It determined that Williamson Dickie’s motion to dismiss the plaintiffs Law 80 claim as preempted by ERISA was moot. And, it remanded the case to the Commonwealth Court. II.

Section 1447(

d) of Title 28 provides, subject to an exception for civil rights cases not relevant here, that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”

Section 1447(

d) applies only if the case is remanded for the reasons stated in 28 U.S.C. § 1447(c) — a timely raised defect in removal procedure or lack of subject matter jurisdiction. Things Remembered, Inc. v. Petrarca, — U.S. -,-, 116 S.Ct. 494, 497, 133 L.Ed.2d 461 (1995). But where the district court order of remand rests on lack of subject matter jurisdiction, that order is not reviewable by appeal or mandamus, even if erroneous. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 343, 96 S.Ct. 584, 589, 46 L.Ed.2d 542 (1976); Gravitt v. Southwestern Bell Tel.

Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977) (per curiam). Contrary to Williamson Dickie’s contention, we interpret the district court’s order of remand as a determination that it lacked subject matter jurisdiction over the removed case because no federal claim had been presented to invoke the court’s federal question jurisdiction. Rejection of Williamson Dickie’s preemption defense was a link in the chain of reasoning. But the preemption ruling, “rather than being apart from the question of subject matter jurisdiction, [is] necessary to determine whether such jurisdiction existed.” Hansen v.

Blue Cross of California, 891 F.2d 1384, 1388 (9th Cir.1989); Nutter v. Monongahela Power Co., 4 F.3d 319, 321 (4th Cir.1993) (“The preemption findings were merely ‘subsidiary legal step[s] on the way to its determination that the case was not properly removed.’ ”) (citation omitted). After remand, the district court’s ruling that the plaintiffs claim is not completely preempted by federal law “has no preclusive effect on the state court’s consideration of the substantive preemption defense.” Whitman v. Raley’s Inc., 886 F.2d 1177, 1181 (9th Cir.1989); Nutter v.

Monongahela Power Co., 4 F.3d at 321-22 (same); Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 409 (6th Cir.1991) (same); Glasser v. Amalgamated Workers Union Local 88, 806 F.2d 1539, 1540 (11th Cir.1987) (per curiam) (same). Because the district court’s preemption finding is unreviewable, principles of collateral estoppel would not apply to preclude relitigation of the issue in state court. Nutter v. Monongahela Power Co., 4 F.3d at 321-22; Whitman v. Raley’s Inc., 886 F.2d at 1181. The approach we take in declining to review the remand order is supported by at least four circuits. See, e.g., Nutter v.

Monongahela Power Co., 4 F.3d at 320-23; Soley v. First Nat’l Bank of Commerce, 923 F.2d at 407-10; Hansen v. Blue Cross of California, 891 F.2d at 1387-90; Glasser v. Amalgamated Workers Union Local 88, 806 F.2d 1539 (11th Cir.1987) (per curiam).

Section 1447(

d) recites that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” Thus, a number of circuits have considered mandamus as a vehicle for review and rejected it as well. See, e.g., Nutter v. Monongahela Power Co., 4 F.3d at 320-23; Soley v. First Nat’l Bank of Commerce, 923 F.2d at 407-10; In re Business Men’s Assurance Co. of Am., 992 F.2d 181, 182-83 (8th Cir.1993) (per curiam). Two circuit court opinions point in the other direction. In In re Life Ins.

Co., 857 F.2d 1190 (8th Cir.1988), the Eighth Circuit considered mandamus appropriate in somewhat comparable circumstances and gave as its reason the otherwise lack of appellate review and the preclusive effect of the district court’s ruling on the state court. Because the district court’s preemption finding is unreviewable, principles of collateral estop-pel would not apply to preclude relitigation of the issue in state court. As for the lack of appellate review, this is just what Congress directed in

section 1447(d). In Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124 (9th Cir.1992), the Ninth Circuit regarded appellate review of a remand order, substantially identical to the order at issue in the case before us, as not barred by § 1447(d). This approach taken by the Tin-gey panel, however, appears inconsistent with the Ninth Circuit’s own case law in Hansen v. Blue Cross of California, 891 F.2d at 1388-89, and Whitman v. Raley’s Inc., 886 F.2d at 1178, neither of which was cited, nor appears to have been considered, by the Tin-gey panel. We agree with the Fourth Circuit, see Nutter v.

Monongahela Power Co., 4 F.3d at 322-23, that the Tingey opinion therefore ought not be given weight. The appeal in No. 96-1728 is summarily dismissed. Loe. R. 27.1. The petition for writ of mandamus in No. 96-1737 is denied.