[1444] Reversed and remanded by published opinion. Judge NIEMEYER wrote the opinion of the court on immunity, in which Senior Judge PHILLIPS joined; Senior Judge PHILLIPS wrote the opinion of the court on subject matter jurisdiction, in which Judge NIEMEYER joined; Judge MICHAEL wrote a dissenting opinion.
NIEMEYER, Circuit Judge, delivered the opinion of the court in Parts I, III, and IV (on the issue of absolute immunity), and PHILLIPS, Senior Circuit Judge, delivered the opinion of the court on the issue of subject matter jurisdiction.
Before NIEMEYER and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge. ■
OPINION
NIEMEYER, Circuit Judge:
We must decide whether absolute immunity shields a government contractor from liability arising from statements it made in response to government investigators during an official investigation. In response to Air Force queries relating to charges of misconduct by an Air Force colonel in his dealings with a private government contractor, the contractor answered questions under oath and provided other information. When the colonel sued the contractor under common law for injury to the colonel’s reputation and position, the contractor asserted the defense of absolute immunity, which the district court rejected. Because we conclude that the government contractor should not be subjected to state law tort claims based on statements it made in response to an official government investigation about its dealings with the government, we reverse the district court’s ruling denying such immunity.
I
On the initiative of Lt. Col. James Rooney, a United States Air Force officer assigned to the Air Force’s Resource Allocation team at the Pentagon, the Air Force Office of Special Investigations and the Inspector General opened an inquiry into the practices of Col. Sanford D. Mangold, who headed the team.1 The investigation was undertaken to determine whether Col. Mangold abused his authority in his treatment of subordinates and in his dealings with the private sector. One aspect of the investigation focused specifically on allegations that Col. Mangold improperly exerted his influence to pressure a government contractor, Analytic Services, Inc. (which the parties refer to as “ANSER”), to hire a Mangold family friend. ANSER is a private corporation which contracts with the U.S. government to provide engineering and analysis services in connection with government acquisitions, particularly by the Air Force.
The investigation into Col. Mangold’s activities was conducted by Air Force Brig. 'Gen. Raymond Huot. General Huot and his staff approached ANSER in June 1993 and inquired about Col. Mangold’s effort to have ANSER hire Mrs. Betsy Worrell, a close friend of Col. Mangold’s wife. Three AN-SER officers responded to the investigators’ questions and provided cassette tapes of telephone messages left by Col. Mangold on ANSER’s telephone answering machine in November and December 1992.
In particular, Dr. John M. Fabian, AN-SER’s CEO, told Gen. Huot that during the late fall of 1992, Col. Mangold, on behalf of the Air Force, had requested use of AN-SER’s consulting services, which were available to units of the government on an open contract. In conjunction with his request, Col. Mangold suggested that ANSER hire Mrs. Worrell to provide those services. Despite the fact that Mrs. Worrell was not qualified to perform the job, Col. Mangold pressed the matter, implying that his team’s use of ANSER’s services depended on AN-SER hiring Mrs. Worrell. Dr. Fabian stated that he told Col. Mangold, “I value the name of this company and I’m not interested in hiring somebody who was a friend of your wife’s, in order to provide contract support.” Dr. Fabian explained to Col. Mangold that [1445] because Mrs. Worrell did not have a college degree, she did not possess the preestab-lished qualifications necessary to provide the services Col. Mangold requested. According to Dr. Fabian, Mangold responded, “[I]f you can’t do this I’ll find a contractor who will.” ANSER’s vice president, Paul A. Adler, confirmed Dr. Fabian’s testimony.
Transcripts of Col. Mangold’s telephone messages left on ANSER’s telephone answering machine during the period corroborate these witnesses’ statements. These transcripts contain several messages in which Mangold repeatedly pressured ANSER to hire Mrs. Worrell. He stated in various messages:
I’m real frustrated that you guys are not hiring Mrs. Worrell. I think that ah, this was an excellent opportunity for ANSER to get involved with XO [the team headed by Col. Mangold], to show some responsiveness, and work with us.
I would like to, uh, talk to you also about the fact that this is really a test case for ANSER and XO working together and if this one works out, we could probably see more opportunities for ANSER.... ******
I’ve run out of maneuvering room on, uh, uh, using other options in getting an individual like Mrs. Worrell on board by the end of the, ah, ah, by the end of this week, first part of next week when we expect the avalanche of budgetary work to come in.
When it became clear that ANSER would not accede to his entreaties, Col. Mangold canceled the Air Force’s request for contract support from ANSER. According to the answering machine transcripts, he stated:
While the individual you sent to us and brought over is very pleasant and, ah, and uh, intelligent young lady, we no longer need to have any ANSER support.... I want to make it absolutely, indelibly, and totally clear that any ANSER support for the Space CQ Dive team will not be provided through this office.... I appreciate John your help and all your ability to, in bringing an individual in the office, but I do not need nor do I contemplate ever needing any ANSER support for this Space CQ Dive Team.
Col. Mangold’s immediate subordinate, Lt. Col. James Rooney, who was familiar with Col. Mangold’s efforts on behalf of Mrs. Wor-rell, was concerned about the impropriety of Col. Mangold’s actions and consulted with another subordinate of Col. Mangold, Capt. Anthony J. Russo, about his concern. As Capt. Russo related the events:
Lt. Col. Rooney took me aside and also expressed serious concerns about the comments made to ANSER. He stated that he had already complained to Lt. Col. Mu-shaw and Col. Kingsbery (both from XOFS) and that he was going to meet with M Gen Hard (SAF/AQS) whom he knew well from a previous assignment. Lt. Col. Rooney stated that Col. Mangold was about to go too far and that he did not want to be involved in anything that might be illegal. He asked for my support. I agreed that Col. Mangold had made comments that could be misinterpreted by AN-SER and promised that I would tell the truth about the meeting at ANSER, if asked. However, I told him that I would not personally go outside of our chain of command, and that I wanted to more forcefully express my objections directly to Col. Mangold before I would think of going over his head.
Following Lt. Col. Rooney’s complaints to superior officers, the Air Force commenced an internal Air Force investigation, and Col. Mangold was transferred from his position as head of the Resource Allocation team.
Several months later, Col. Mangold and his wife, Karen, filed suit in a Virginia state court against ANSER, its executives, and Lt. Col. Rooney for injuring their reputations and Col. Mangold’s position with the United States Air Force and for intentional infliction of emotional distress. The seven-count complaint alleges both that the defendants defamed Col. and Mrs. Mangold by fabricating the charges of misconduct and that the defendants conspired to damage Col. Mangold’s reputation and position. The Mangolds demand $15 million in compensatory damages and $5 million in punitive damages.
[1446] Lt. Col. Rooney removed the case to the United States District Court for the Eastern District of Virginia under 28 U.S.C. § 2679(d)(2), and the United States substituted itself for Lt. Col. Rooney as the party defendant under the Federal Tort Claims Act, 28 U.S.C. § 2679(d)(1). After the United States filed a motion for summary judgment for lack of jurisdiction,2 the Mangolds voluntarily dismissed the United States as a party defendant.
ANSER and its employees also filed a motion for summary judgment, asserting, among other defenses, immunity for claims arising out of their responses to questioning and requests for information in the course of an official Air Force investigation into AN-SER’s contractual arrangement with the Air Force. The district court determined that it had discretion to retain jurisdiction over the case, even though the United States was no longer a party, to decide ANSER’s immunity defense. After denying ANSER’s immunity defense, the court remanded the case to the state court, purportedly under 28 U.S.C. § 1447(c).
This appeal was taken from the district court’s ruling denying absolute immunity. See Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (denial of claim of absolute immunity is immediately appealable under collateral order doctrine).
II
As a threshold matter, we must address the suggestion that we lack subject matter jurisdiction to hear this appeal because the district court’s ruling on absolute immunity was included in an order for remand, and certain l'emand orders are not reviewable. See 28 U.S.C. § 1447(d); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) (limiting application of § 1447(d) to remand orders issued under § 1447(c)).
The appeal in this case challenges only the district court’s ruling on absolute immunity, not its subsequent remand to state court. The fact that the two dispositions — denial of immunity and remand to state court — were included in a single order does not deprive us of jurisdiction to review the immunity ruling. See Waco v. U.S. Fidelity & G. Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934). In Waco, the Court held that it had jurisdiction to review an order dismissing a party, even though the dismissal was included in a non-reviewable order remanding the case to state court. See also Jamison v. Wiley, 14 F.3d 222, 233 (4th Cir.1994) (permitting review of a party-substitution order despite its inclusion in same paper with order of remand).
Accordingly, I conclude that we have jurisdiction to review the district court’s interlocutory order denying the appellants absolute immunity.3 See Nixon, 457 U.S. at 743, 102 S.Ct. at 2697-98. Alternatively, I concur in Judge Phillips’ concurring opinion directed to the jurisdictional issue.
Ill
Much of the law of governmental immunity has been developed as part of the federal common law to protect a sphere of discretionary governmental action from the potentially debilitating distraction of defending private lawsuits. See, e.g., Barr v. Matteo, 360 U.S. 564, 569-73, 79 S.Ct. 1335, 1338-41, 3 L.Ed.2d 1434 (1959) (plurality opinion); Westfall v. Erwin, 484 U.S. 292, 295, 108 S.Ct. 580, 583, 98 L.Ed.2d 619 (1988). In Barr and Westfall, the Court recognized an absolute immunity from state law tort liability for federal officials exercising discretion while acting within the scope of their employment. Protecting government actors with absolute immunity, howev[1447] er, has its costs, since illegal and even offensive conduct may go unredressed. Such immunity also tends to undermine the basic tenet of our legal system that individuals be held accountable for their wrongful conduct. See Westfall, 484 U.S. at 295, 108 S.Ct. at 583. For these reasons, the common law immunity recognized in Barr and Westfall is afforded only to the extent that the public benefits obtained by granting immunity outweigh its costs. Id. at 296 n. 3, 108 S.Ct. at 583 n. 3.4
The absolute immunity recognized in Barr and Westfall is sufficiently broad to protect, as part of the sphere of discretionary governmental action, official decisions to investigate suspected fraud, waste, and mismanagement in the administration of government contracts. Official investigations of that type are critical to the efficient conduct of government and their value outweighs the interest of affording individuals redress against persons participating in the investigations for wrongful action. And because such investigations can be effective only if investigators are able to obtain the cooperation of witnesses, cooperating government employees should also be protected through immunity. If government employees cooperating in such investigations are left exposed to lawsuits filed by those under investigation, they might be reluctant to cooperate, even if they were eyewitnesses to improper conduct. Equally as important, in the absence of such protection, they might distort information in an effort to avoid exposure to tort liability,
Whether Barr and Westfall immunity also extends to persons in the private sector who are government contractors participating in official investigations of government contracts is less clear. Even though private persons under contract with the government act only partly in the public sphere, the public interest may demand that immunity protect them to the same extent that it protects government employees. The public interest in facilitating the government’s policing of its contracting process — a process subject to the temptation of conflicting self interest and to the risks of undue influence and corruption — is perhaps as important as the public interest in facilitating the government’s policing of itself. And to expose private government contractors who are responding to and cooperating with such investigations to the risk of state tort claims would chill the investigative effort to the same extent that exposing cooperating government employees would. Ultimately, to allow such tort liability, whether against government employees or private contractors, would tend to make government less efficient.
Extending such immunity to the private sector, in the narrow circumstances where the public interest in efficient government outweighs the costs of granting such immunity, comports with the principles underlying the immunity recognized in Barr and Westfall, since the scope of that immunity is defined by the nature of the function being performed and not by the office or the position of the particular employee involved.
As the Court in Barr explained:
The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.
360 U.S. at 572-73, 79 S.Ct. at 1340. If absolute immunity protects a particular governmental function, no matter how many times or to what level that function is dele[1448] gated, it is a small step to protect that function when delegated to private contractors, particularly in light of the government’s unquestioned need to delegate governmental functions. The government cannot perform all necessary and proper services itself and must therefore contract out some services for performance by the private sector. When the government delegates discretionary governmental functions through contracting with private contractors, therefore, the same public interest identified in Barr and Westfall— the interest in efficient government — demands that the government possess the ability meaningfully to investigate these contracts to ensure that they are performed without fraud, waste, or mismanagement.
Extending immunity to private contractors to protect an important government interest is not novel. See, e.g., Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). In holding that a government contractor providing helicopters for the military was not liable under state tort law for injury caused by a design defect, the Court in Boyle equated the liability of a private procurement contractor with that of a government official who might have been called upon to design and manufacture the same product:
The present case involves an independent contractor performing its obligation under a procurement contract, rather than an official performing his duty as a federal employee, but there is obviously implicated the same interest in getting the Government’s work done.
Id. at 505, 108 S.Ct. at 2514-15 (emphasis added). After observing that designing a helicopter for military performance is “assuredly a discretionary function,” id. at 511, 108 S.Ct. at 2518, and that a government official performing the same function would therefore be protected by immunity under 28 U.S.C. § 2680(a) (Federal Tort Claims Act), the Court concluded:
It makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production. In sum, we are of the view that state law which holds Government contractors liable for design defects in military equipment does in some circumstances present a “significant conflict” with federal policy and must be displaced.
487 U.S. at 512, 108, S.Ct. at 2518 (footnote omitted). See also Yearsley v. Ross Constr. Co., 309 U.S. 18, 20-21, 60 S.Ct. 413, 414-15, 84 L.Ed. 554 (1940).
We believe that the rationale for the protections articulated in Barr, Westfall, and Boyle also applies to the case before us to the extent that this case involves a discretionary governmental function which has been delegated to the private sector. This conclusion, however, does not fully resolve the issue of whether persons cooperating with an official government investigation, as distinguished from persons conducting the investigation, are protected. While the decision to conduct an investigation may be a discretionary act involving an exercise of judgment, see Westfall, 484 U.S. at 300, 108 S.Ct. at 585-86, and as such may be protected by absolute immunity, the reasoning in Westfall provides only a partial foundation for protecting witnesses cooperating in an official investigation. The full justification for such immunity also draws on principles of that immunity which protects witnesses in government-sponsored investigations and adjudications.
The law provides immunity of varying degrees to both private citizens and public officials engaged in investigating and adjudicating disputes in order to ensure a meaningful government-sponsored judicial system. Thus, an absolute immunity shields witnesses testifying in court, see Briscoe v. LaHue, 460 U.S. 325, 335-36, 103 S.Ct. 1108, 1115-16, 75 L.Ed.2d 96 (1983), and testifying before a grand jury. See Anthony v. Baker, 955 F.2d 1395, 1400 (10th Cir.1992); Kincaid v. Eberle, 712 F.2d 1023 (7th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983). And immunity also has been held to extend to witnesses giving testimony to public prosecutors, see Holmes v. Eddy, 341 F.2d 477, 480 (4th Cir.), cert. denied, 382 U.S. 892, 86 S.Ct. 185, 15 L.Ed.2d 149 (1965). The [1449] underlying policy for the grant of such immunity is long-standing:
In the words of one 19th-century court, in damages suits against witnesses, “the claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible.” Calkins v. Sumner, 13 Wis. 193, 197 (1860). A witness’s apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify.... And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability.
Briscoe, 460 U.S. at 332-33, 103 S.Ct. at 1114 (citation omitted). In the absence of a privilege for such witnesses, the exposure to tort lawsuits would chill government-sponsored investigatory and adjudicatory efforts, threatening to undermine their reliability and therefore to erode confidence in the judicial function of government. Those negative consequences would far outweigh the benefit of giving individuals a right of redress for false testimony.
Accordingly, in the circumstances of this case, we recognize an absolute immunity that has two roots, one drawing on the public interest in identifying and addressing fraud, waste, and mismanagement in government, and the other drawing on the common law privilege to testify with absolute immunity in courts of law, before grand juries, and before government investigators. While this immunity has foundations well established in the common law, we take care to apply it to witnesses in the private sector only to the extent necessary to serve the greater public interest. Therefore we apply such immunity only insofar as necessary to shield statements and information, whether truthful or not, given by a government contractor and its employees in response to queries by government investigators engaged in an official investigation. See also Becker v. Philco Corp., 372 F.2d 771, 774 (4th Cir.) (holding a defense contractor immune from liability for an alleged defamatory report detailing possible security breaches by two employees), cert. denied, 389 U.S. 979, 88 S.Ct. 408, 19 L.Ed.2d 473 (1967); Holmes, 341 F.2d at 480-81 (granting stockbroker immunity for statements made to the SEC about a suspicion that a company was attempting to “bilk the public via the securities market”); Gulati v. Zuckerman, 723 F.Supp. 353, 358 (E.D.Pa.1989) (granting absolute immunity to a defense contractor and its employees for allegedly defamatory statements about the company’s former president in his dealings with the Department of Defense). Cf. Bradley v. Computer Sciences Corp., 643 F.2d 1029, 1033 (4th Cir.) (granting qualified immunity to defense contractor from libel suit for criticism of civil service employee based on constitutional right to criticize government), cert. denied, 454 U.S. 940, 102 S.Ct. 476, 70 L.Ed.2d 248 (1981).
Turning to the facts in this case, an official Air Force investigation was undertaken by Brig. Gen. Huot and the Office of Special Investigations to determine whether Col. Mangold had been involved in any wrongdoing in his dealings with ANSER. Investigations conducted by the Air Force Office of Special Investigations are official actions designed to combat fraud, waste, abuse, and mismanagement in government, and the scope of Gen. Huot’s investigation was limited, in his words, to inquiring into “the involvement of Sandy Mangold with ANSER Corp .... in trying to get a budget analyst hired and allegations which surrounded trying to get one Mrs. Betsy Worrell hired with ANSER in that process.” ANSER did not initiate the investigation, but merely responded to the official Air Force inquiries. And nothing in the record suggests that ANSER and its employees volunteered any information beyond the scope of the Air Force’s inquiries. Cf. Gulati 723 F.Supp. at 358 (refusing to extend immunity to a letter written by contractor to the Small Business Administration which was not connected with a governmental investigation and not made in response to a government request). It was solely on the substance of the responses given by ANSER and two of its officers to these inquiries that Mangolds’ tort claims against ANSER and its officers were based.
[1450] Because ANSER and its employees provided information only as requested by the government agency officially investigating Col. Mangold’s dealings with ANSER, we hold that ANSER and its employees are absolutely immune from state tort liability based on any statements made and information given in response to queries made in the course of the Air Force’s investigation. Accordingly, the ruling of the district court that such immunity does not attach is reversed.
PHILLIPS, Senior Circuit Judge,
specially concurring, delivered the opinion of the court on the issue of subject matter jurisdiction:
I concur in Judge Niemeyer’s opinion holding that we have jurisdiction to review the district court’s no-immunity ruling and, on the merits, that the district court erred in that ruling. I write specially because I believe that under the unusual procedural circumstances, a proper disposition of the appeal requires that we review the remand order as well as the immunity ruling; that for that purpose we may inquire, sua sponte, into our jurisdiction to do so; that upon such an inquiry, we do have jurisdiction for that purpose; and that upon that review error is apparent, requiring vacatur of the remand order.
I
The ANSER defendants’ notice of appeal “designates” as the “judgment, order, or part thereof appealed from” “the Memorandum Opinion and Order dated and entered in this action on the 1st day of February, 1994.” JA 327. That Order both denied the absolute immunity defense and remanded the action to the state court. JA 325.
Although none of the parties has challenged our jurisdiction to review either of these rulings, we must of course in this as any case satisfy ourselves, sua sponte, of our jurisdiction to resolve any merits issues properly presented for review. Here, the only merits issue formally presented for review is the propriety of the district court’s immunity ruling. Appellant’s Br. i. But, for reasons that follow, in order to address sua sponte our jui'isdiction to review that substantive ruling, we must also address our jurisdiction to review the remand order, for the former may turn significantly on the latter.
A.
The principal problem with our jurisdiction to review the remand order is of course, 28 U.S.C. § 1447(d) which generally bars review, by any means, of orders remanding removed cases. Although Thermtron, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), established that only remands invoking one of the grounds specified in § 1447(c) — defect in removal procedure or lack of subject matter jurisdiction' — come under § 1447(d)’s bar, the remand order here arguably does invoke lack of subject matter jurisdiction, hence does come under the bar. Indeed, at one point in the order the district court opined that “there is no longer any basis for federal jurisdiction”, and the remand order concludes that it is entered “pursuant to 28 U.S.C. § 1447.” If this was the actual ground invoked, we may not review this order even if it be manifestly, inarguably erroneous. See Gravitt, 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977).
But, 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. First, it must be the case, as some courts have had the occasion to recognize, that neither the citation of § 1447(c) nor the failure to cite it as presumed authority for a remand is conclusive of the real question: whether one of its two grounds is the actual basis being invoked as authority for remand. See Kolibash, 872 F.2d 571, 573 (4th Cir.1989) (failure to cite not conclusive; § 1447(c) basis found in record review); Kunzi, 833 F.2d 1291, 1293-94 (9th Cir.1987) (§ 1447(c) cited, but further inquiry made to determine actual basis). If a review of the record discloses to a reviewing court’s satisfaction that, notwithstanding any indications to the contrary, the actual basis upon which the court thought it was empowered to remand was [1451] neither of these, § 1447(d) does not bar review. In the instant case, the only question is whether the basis actually invoked was lack of jurisdiction.
B.
My reading of the record here satisfies me that, despite evident confusion and some backing and filling during the process, the district court remanded in the end not on the assumption that there was a “lack of jurisdiction” so that remand was compelled, but that though there was jurisdiction, there was discretion to remand. It is settled that when a district court remands on such a basis, § 1447(d) does not bar appellate review. See, e.g., In re Surinam Airways Holding Co., 974 F.2d 1255, 1257 (11th Cir.1992); see also Carnegie-Mellon v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (court of appeals’ review of discretionary remand of pendant state law claim affirmed by Supreme Court).
My analysis of the record on this point is as follows: The remand order was actually entered not in response to a motion to remand, but in consequence of a hearing on a motion by the United States to dismiss or for summary judgment on the merits and a motion of the ANSER defendants for summary judgment on the merits based upon their immunity defense. At the outset of the hearing it was revealed that the plaintiff had, in response to the United States’ motion, voluntarily dismissed the United States. At that point the court’s first suggestion of jurisdictional issues occurred. Having determined on inquiry that there was not diversity between the remaining parties, the court inquired: “Then there is no longer any basis for federal jurisdiction to this, is there?” J.A. 307. Asking to be heard on that matter, counsel for the ANSER defendants noted that those defendants had raised a federal-immunity defense and suggested that in the situation thus presented, it was “appropriate” for the court to “retain[ ] jurisdiction based upon the assertion by the private defendants of a Federal-immunity defense.” J.A. 308. Citing decisional authority, counsel argued that the existence of such a federal defense “provides the Court with federal jurisdiction.” Id. And in a critical additional point, counsel (incorrectly) asserted, “Of course, in any event, ... the Court under United Mine Workers v. Gibbs may retain jurisdiction over claims even if a Federal claim no longer exists in the case.” Id. To which the court, also critically for our purposes, responded: “But it’s purely discretionary with the Court whether to hold on to the case in the posture that it presently is in. [?].” Id. (emphasis added). To which ANSER counsel responded, with no demur by counsel for plaintiff: “That’s correct, Your Honor. I would urge the Court to go ahead and decide the summary judgment motion ... based upon the defendant’s assertion of a Federal-immunity defense.... ” J.A. 308-09. Counsel for AN-SER then argued the merits of the federal defense in an extended colloquy with the court during with the court gave no indication that, at odds with counsel’s suggestion, it actually lacked subject matter jurisdiction over the claim against the ANSER defendants. J.A. 309-13.
When, following this colloquy, plaintiffs’ counsel was asked to respond, counsel first noted that “to the extent the Court does not feel it has jurisdiction over this claim, we would ... welcome a remand to [the state] Court.” J.A. 313. Counsel then turned to an argument on the merits of the immunity defense with the court engaging in substantive colloquy without suggesting any reservation about its jurisdiction to do so. J.A. 313-19. At the conclusion of counsels’ opposing arguments on the merits, the district court made critical statements relevant to its understanding of the jurisdictional posture of the case: “I am going to take the [ANSER] defendants’ motion for summary judgment under advisement_ [I]f I grant the motion for summary judgment, that moots out the case. It’s over. If I do not grant it, I will be referring [sic] it back to the [state] Court, because there are issues of essentially state law that are involved in the case. It’s more appropriate for them to be handled in a state court.... [G]iven the nature of the charges, they are better handled in State Court if we get to that point.” J.A. 320-21 (emphasis added). The hearing was then adjourned.
[1452] In its “Memorandum Opinion and Order” entered four days later, the district court, in summarizing the procedural setting, noted that
“At the hearing of [the summary judgment] motions, plaintiffs’ counsel advised the Court that defendant United States was dismissed from the action. Without the federal defendant there is no longer any basis for federal jurisdiction because diversity does not exist among the remaining parties. Defendants asked the court to retain jurisdiction solely for the purpose of deciding [the federal-immunity issue].”
J.A. 323 (emphasis added).
After having then addressed the merits of the immunity issue, the court opined that, “The defendants are not entitled to absolute immunity ... and their motion [for summary judgment on that basis] must by DENIED .... ” J.A. 325. Then, noting that the defendants also had raised a defense of judicial proceeding evidentiary privilege, the court observed that the standard under which such a privilege must be assessed was one of Virginia state law, and opined that “a determination of whether defendants have met this standard is better left to a Virginia tribunal.” Id. (emphasis added). The court then “ORDERED that this action be remanded to [the state court] pursuant to 28 U.S.C. § 1447(c).”
I deduce from this course of proceedings, despite some obvious confusion at points along the way and flat error in the end as to the court’s power to remand, the following evolution of the district court’s understanding of the matter. When the hearing began, the court had before it motions for summary judgment by both the United States (as substituted defendant pursuant to the Westfall Act certification), and the private defendants. Immediately upon finding out that the United States had been voluntarily dismissed as a party, and after learning upon inquiry that there was not diversity between the private parties, the court perceived and raised a possible question of its jurisdiction over the claim against the (now re-substituted?) AN-SER defendants — but only in the form of a query to counsel. J.A. 307. Having, however, then heard the ANSER defendants’ contention that by reason of their federal-immunity defense the court should “retain” its jurisdiction over the claims against them, and that in any event it could do so under the Gibbs rule, the court plainly acquiesced in the assertion that it did have jurisdiction to do so by its rhetorical comment that the jurisdiction was, however, “purely discretionary.” J.A. 308. The fact that this was now the court’s perception despite its earlier intimation of doubt as to whether it had any basis for jurisdiction is strongly borne out by what then occurred. First, the court proceeded to consider the opposing arguments of counsel on the substantive defense, expressing no more doubts about its jurisdiction to do so. This alone might have indicated nothing more than conditional consideration, with the jurisdictional question being reserved. That is belied, however, by later comments that plainly indicate the court’s continued belief down to entry of its remand order that it had jurisdiction of the claims against the ANSER defendants, but that it also had discretionary power (as in the erroneously-suggested Gibbs situation) not to exercise that jurisdiction once the federal defense to those claims had been ruled out. Specifically, the court indicated to counsel at that point that if it decided against immunity, it would remand the case to state court because the issues then remaining would be essentially state law issues, and it would be “more appropriate for them to be handled in a state court”, not that they must be handled there for lack of its own jurisdiction.
That this perception of the basis for its power to remand persisted to the time the remand order was entered is then confirmed in the Memorandum Opinion supporting the remand. There again, the court opined that with the case now involving only state law issues of claim and defense, these were “better left to a State tribunal”, not that they must be remanded because of the court’s lack of jurisdiction to determine them. In the face of this compelling evidence, the final citation to § 1447(c) can only be understood as simple inadvertence, and we certainly may do so.
[1453] On this basis, I conclude that review of the remand order, because not actually based on either of the grounds specified in § 1447(c), is not barred by § 1447(d).
C.
That leads, however, to the further question whether the remand order is otherwise barred from review as an interlocutory order. Here, the law is plain. It may not be reviewed by appeal because it does not qualify as an appealable collateral order under the Cohen doctrine, but it may be reviewed, if sufficiently egregious in error, by mandamus. See Thermtron, 423 U.S. at 352-53, 96 S.Ct. at 593-94. And, we may treat a notice of appeal as a petition for mandamus when the stringent conditions for issuing that writ are present. See Jamison v. Wiley, 14 F.3d 222, 234 (4th Cir.1994). Here, they are. The result of allowing this remand order to stand, even if erroneous, would be wrongly and unnecessarily to fragment a claim between state and federal courts in a way fraught with mischief and capable of producing unnecessary tensions between the two systems. Principally, it could present difficult and unresolved issues of a state court’s power to reexamine a federal court’s decision on a federal-immunity defense to a remanded state-law claim, and beyond that to inconsistent decisions were the state court to consider itself free to re-examine the issue. The conditions for mandamus review are therefore present and, accordingly we should treat the notice of appeal as a petition for the writ.
D.
This then leads to the question whether1 the district court did have the discretionary power it purported to exercise to remand the state claim after having denied the federal-immunity defense to it.
On that issue, I am satisfied the court did not have that power but was obliged to exercise its removal jurisdiction to resolve the whole claim. I am aware of no direct authority for this conclusion in an exactly comparable procedural setting. But it is supported by reasoning from analogous situations.
Had the ANSER defendants also petitioned for removal — as they properly could have under § 1442(a)(1), the federal officer removal statute — there would be specific case authority for this result. We held in Jamison that in that situation, once removal jurisdiction attached it was not thereafter defeated by rejection of the immunity defense, and that there was accordingly no power under § 1441(c) to remand the claim. Jamison v. Wiley, 14 F.3d 222, 239 (4th Cir.1994). Here, though removal was effected by the United States under the Westfall Act, 28 U.S.C. § 2679, the effect recognized in Jamison surely must be the same: that the jurisdiction properly acquired by the removal was effectively mandatory and did not permit a discretionary remand following denial of the federal immunity defense. As Jamison recognized, the two removal provisions are complementary in their intended operation, providing alternative means for getting such claims into the federal courts on the basis of the federal immunity defense. See id. at 237-38 & n. 16. Compare Carnegie-Mellon v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (when removal jurisdiction is based on § 1441(a), district court has power to remand — rather than dismiss without prejudice — -pendent state-law claim following dismissal of federal claims).
On this basis, I conclude that the district court erred in ordering a remand of the claim (with the federal-immunity defense rejected) to state court, and that it must therefore be vacated.
II
As to our jurisdiction to review the immunity ruling, I agree with Judge Niemeyer that under Nixon v. Fitzgerald, 457 U.S. 731, 743, 102 S.Ct. 2690, 2697-98, 73 L.Ed.2d 349 (1982), it is reviewable under the Cohen doctrine as a collateral order denying absolute immunity. But I believe that our contemporaneous vacatur of the remand order makes more certain — perhaps is essential to — the immunity ruling’s required finality as a collateral order, since it removes any question of possible state court power to reexamine that issue. Furthermore, that vacatur removes any need for concern whether [1454] the remand order was one “preceding it in logic and fact.” See Jamison, 14 F.3d at 233.
ORDER
For the reasons given in parts I, III, and IV of Judge Niemeyer’s opinion and the entirety of Judge Phillips’ opinion, we reverse the district court’s order denying the defense of absolute immunity, vacate the district court’s remand order, and remand the case to that court with instructions to dismiss the action.
IT IS SO ORDERED.