LUCERO, Circuit Judge.
Plaintiffs seek to appeal an order remanding this suit to New Mexico state court. They originally filed an action against Vanderbilt Capital Advisors, LLC, two of its operatives, and several New Mexico state officials in New Mexico state court. Plaintiffs allege that state investment decisions were made under a corrupt "pay to play" system benefitting politically connected individuals at the expense of public pensioners. The suit was removed to federal court. However, the district
We draw the following facts from the complaint.
In early 2006, Vanderbilt designed a trust offering composed of certain high-risk collateralized debt obligations. It hired Marc Correra as a "placement agent" to pitch the investment to the ERB and other state entities. Plaintiffs allege that Correra was hired because of his political connections as part of a "pay to play" scheme under which state entities were steered toward risky investments in exchange for political support from investment companies.
The ERB Investment Committee met to consider the Vanderbilt investment on May 12, 2006. Immediately thereafter, the ERB voted four to two in favor of investing $40 million in the Vanderbilt trust. Plaintiffs allege that all four members who voted in favor — each of whom is a named defendant — had "political ties to the Governor." They further claim that the May 12 meeting was plagued by procedural irregularities and misrepresentations on the part of Vanderbilt. The Fund's $40 million investment ultimately proved worthless. Other than two small dividend payments, the investment generated no income and the Fund's $40 million principal investment was completely lost.
Plaintiffs initially filed suit in New Mexico state court, asserting numerous common law claims. They sought to certify a class of similarly situated individuals, or in the alternative, to press their claims derivatively on behalf of the Fund. The action was removed to federal court. In an amended complaint, Plaintiffs added claims under 15 U.S.C. § 78j(b) and Securities and Exchange Commission Rule 10B-5, over which federal courts possess exclusive jurisdiction, see 15 U.S.C. § 78aa, and under the New Mexico Uniform Securities Act, N.M. Stat. § 58-13C-509.
Various defendants filed motions to dismiss. The district court granted a Fed. R.Civ.P. 12(b)(1) motion, concluding that Plaintiffs lack standing. Analogizing to ERISA case law, the court held that in order to establish standing, a defined-benefit beneficiary must allege facts suggesting that the defendants' misconduct created an appreciable risk that a fund would
Vanderbilt filed a motion to dismiss in this court, arguing that we lack appellate jurisdiction. Although it later withdrew that motion, "we have an independent duty to examine our own jurisdiction." Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir.2001) (citation omitted).
The jurisdiction of this court is circumscribed by 28 U.S.C. § 1447, which governs cases removed from state court. In such cases, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." § 1447(c). The statute prohibits appellate review of such remand orders: "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." § 1447(d).
Accordingly, we must look to the basis of the district court's remand to determine whether we possess appellate jurisdiction. If the district court based its remand on a lack of subject matter jurisdiction, its order is "not reviewable on appeal or otherwise." § 1447(d). The district court concluded that Plaintiffs lack standing. In its Memorandum Opinion and Order, the court repeatedly characterized its standing ruling as depriving it of subject matter jurisdiction, concluding that it must "remand the case to New Mexico state court for lack of subject-matter jurisdiction." Similarly, the judgment entered below states that "[t]he Court, having found that it lacks subject matter jurisdiction in this matter, will remand this case, and all of its claims, to the First Judicial District, Santa Fe County, State of New Mexico."
Plaintiffs argue that despite the district court's characterization, standing and subject matter jurisdiction are distinct issues. They cite Rent Stabilization Ass'n of New York v. Dinkins, 5 F.3d 591 (2d Cir.1993), in which the court distinguished between the two concepts:
Id. at 594 n. 2 (citations omitted). But see Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 n. 6 (2d Cir.2006) ("Although lack of Article III
Plaintiffs also cite several cases in which courts have considered standing and subject matter jurisdiction separately. See, e.g., Wooddell v. Int'l Bhd. of Elec. Workers, Local 71, 502 U.S. 93, 99 n. 4, 112 S.Ct. 494, 116 L.Ed.2d 419 (1991) ("As the case comes to us, however, the sole issue is whether a suit by a union member alleging a violation of a contract between two unions is within the subject-matter jurisdiction conferred by § 301. Petitioner's standing to bring the suit is not disputed before this Court."); Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C.Cir. 2007) ("Where both standing and subject matter jurisdiction are at issue, however, a court may inquire into either and, finding it lacking, dismiss the matter without reaching the other.").
As Plaintiffs acknowledge, however, our review of the district court's rationale is quite limited. We recognize that "that the word `jurisdiction' has been used by courts... to convey many, too many, meanings." Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 130 S.Ct. 584, 596, 175 L.Ed.2d 428 (2009) (quotation omitted). And we are mindful of the Supreme Court's admonition "against profligate use of the term." Id. But this factor cannot expand our limited review of the district court's characterization of the basis for its remand order. Although "[s]ome of our prior cases suggested that ... we could independently review the actual grounds upon which the district court believed it was empowered to remand ..., the Supreme Court has clarified that the scope of this determination is narrower." Moody, 536 F.3d at 1163. If the district court stated that its remand was based on a lack of subject matter jurisdiction and that basis "is colorably characterized as subject-matter jurisdiction, appellate review is barred by § 1447(d)." Powerex Corp., 551 U.S. at 234, 127 S.Ct. 2411. The Court explained that "[l]engthy appellate disputes about whether an arguable jurisdictional ground invoked by the district court was properly such would frustrate the purpose of § 1447(d)." Id. And because "the line between misclassifying a ground as subject-matter jurisdiction and misapplying a proper ground of subject-matter jurisdiction is sometimes elusively thin," appellate courts must dismiss unless a district court "dresses in jurisdictional clothing a patently nonjurisdictional ground." Id.
Because the district court explicitly stated that its remand was based on a lack of subject matter jurisdiction, the only question for this court is whether that characterization is "colorabl[e]." Id. We conclude that it is. As we held in Moody, "our inquiry is essentially a superficial determination of plausibility." 536 F.3d at 1163. Under this highly deferential standard, we must dismiss.
Our court has repeatedly characterized standing as an element of subject matter jurisdiction. See, e.g., Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir.2005) ("As with all questions of subject matter jurisdiction except mootness, standing is determined as of the date of the filing of the complaint." (quotation omitted)); Schutz v. Thorne, 415 F.3d 1128, 1132 (10th Cir.2005) (stating that de novo review applies to "questions of subject matter jurisdiction, including whether a plaintiff has standing to sue"). Further, at least one of our sibling circuits has held that it lacks jurisdiction over remand orders based on lack of standing. In Roberts v. BJC Health System, 452 F.3d 737 (8th Cir.2006), the Eighth Circuit concluded
Numerous other courts have considered the flip side of this issue: whether a district court's conclusion that a plaintiff lacks standing in a removed case requires the court to remand rather than dismiss.
Given this weight of authority, we are compelled to conclude that a dismissal for lack of standing can be at least colorably characterized as a dismissal for lack of subject matter jurisdiction. Vanderbilt argues that we possess jurisdiction, however, because of a procedural quirk in this case. Plaintiffs' federal securities claim, which was added after the case was removed to federal court, is subject to exclusive federal jurisdiction. See 15 U.S.C. § 78aa. Because the state court cannot hear that claim, Vanderbilt contends that outright dismissal rather than remand was the proper course. It cites Bell v. City of Kellogg, 922 F.2d 1418 (9th Cir.1991), in which the Ninth Circuit suggested that courts could dismiss an action rather than remand to state court if "there is absolute certainty that remand would prove futile." Id. at 1425 (quotation omitted).
The Supreme Court suggested shortly after Bell was decided that § 1447(c) mandates remand without a futility exception: "[T]he literal words of § 1447(c), ... on their face, give no discretion to dismiss rather than remand an action. The statute declares that, where subject matter
Regardless of the propriety of a futility exception, however, Vanderbilt's contention goes to the correctness of the district court's remand rather than to the jurisdiction of this court. Even if the district court erred in remanding federal claims to a court that cannot hear them, "[w]here the order is based on one of the [grounds enumerated in § 1447(c) ], review is unavailable no matter how plain the legal error in ordering the remand." Kircher v. Putnam Funds Trust, 547 U.S. 633, 642, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006) (quotation omitted); see also Kennedy v. Lubar, 273 F.3d 1293, 1297 (10th Cir.2001) ("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."). Although the federal securities claim was added post-removal, the district court remanded "this case, and all of its claims" to state court. In light of the unambiguous remand of the federal securities claim, the propriety of the district court's remand is simply not before us no matter the difficulty of Plaintiffs' position. We have "no authority to create equitable exceptions to jurisdictional requirements." Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Our determination that the district court's dismissal for lack of standing is at least colorably a dismissal for lack of subject matter jurisdiction ends the inquiry.
Finally, Plaintiffs argue that we may exercise jurisdiction over this appeal notwithstanding § 1447(d) under City of Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934). In Waco, the Court held that a federal appeals court may, under certain circumstances, review an order dismissing some claims even if the district court remanded other claims to a state court in the same decree. Id. at 143, 55 S.Ct. 6. The Supreme Court has clarified, however, that "Waco does not permit an appeal when there is no order separate from the unreviewable remand order." Powerex Corp., 551 U.S. at 236, 127 S.Ct. 2411; see also Waco, 293 U.S. at 143, 55 S.Ct. 6 ("True, no appeal lies from the order of remand; but in logic and in fact the decree of dismissal preceded that of remand and was made by the District Court while it had control of the cause.").
The Waco exception does not permit review of a remand order; it merely allows a party to appeal an order dismissing certain claims even if that order is accompanied by a remand of other claims. See Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1209 n. 1 (10th Cir.2000) ("Federal appeals courts have consistently held, however, that they have jurisdiction
For the foregoing reasons, this appeal is