CSX Transp., Inc., In re, s. 97-2038

• Decision Date: 16 July 1998
• Docket Number: Nos. 97-2038,97-2053,s. 97-2038
• Citation: 151 F.3d 164
• Parties: In re CSX TRANSPORTATION, INCORPORATED, Petitioner. Larry W. SHIVES, Plaintiff-Appellee, v. CSX TRANSPORTATION INCORPORATED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 164

151 F.3d 164

1998 A.M.C. 2449

In re CSX TRANSPORTATION, INCORPORATED, Petitioner.

Larry W. SHIVES, Plaintiff-Appellee, v. CSX TRANSPORTATION INCORPORATED, Defendant-Appellant.

Nos. 97-2038, 97-2053.

United States Court of Appeals, Fourth Circuit.

Argued May 6, 1998.

Decided July 16, 1998.

ARGUED: Eric Rawson Harlan, Stephen Bennett Caplis, Whiteford, Taylor & Preston, L.L.P., Baltimore, Maryland, for Appellant. Perry Matthew Darby, Albertini & Darby, Baltimore, Maryland, for Appellee. ON BRIEF: Guy M. Albertini, Allan B. Rabineau, Theresa A. Rosendale, Albertini & Darby, Baltimore, Maryland, for Appellee.

Before NIEMEYER and MICHAEL, Circuit Judges, and FRIEDMAN, United States District Judge for the Eastern District of Virginia, sitting by designation.

Vacated and remanded with instructions by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MICHAEL and Judge FRIEDMAN joined.

OPINION

NIEMEYER, Circuit Judge:

The question presented is whether a worker was engaged, at the time of his work-related injury, in "maritime employment" as defined in the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 902(3), when his job at a marine terminal included the loading and unloading of ships only 15% of the time and when he was unloading non-maritime freight from a train at the time of his injury. Because we hold that the worker was engaged in maritime employment, we vacate and remand to the district court with instructions to dismiss this case, which was brought under the Federal Employers' Liability Act, to permit the administrative process on the worker's pending Longshore Act claim to run its course.

I

Larry W. Shives was injured in August 1996 at the Seagirt Marine Terminal in Baltimore, Maryland, while in the employ of CSX Transportation, Inc. ("CSXT"). Shives was employed as a "carman," a job that required him to inspect train cars and assist in loading and unloading them. The Seagirt Marine Terminal is an intermodal terminal where freight is unloaded from trains onto ships as well as trucks, and vice versa. The parties have stipulated in this case that 15% of the tasks assigned to CSXT's carmen such as Shives involved the loading and unloading of maritime freight. The remainder of the carmen's time was spent on non-maritime transfers of freight from trains to trucks and vice versa.

When Shives sustained his injury, he was assisting in the unloading of a flatbed train car that carried UPS trailers. As he unlocked the hitch on the car, he slipped on some oil, twisting his right knee and striking it against the bed of the car. The parties stipulated that the cargo on the train on which Shives was injured was being unloaded onto trucks for inland destinations.

Following his injury, Shives filed a negligence suit against CSXT in Maryland state court under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. He also filed a protective worker's compensation claim with the Department of Labor under the Longshore and Harbor Workers Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq.

Contending that Shives was engaged in maritime employment and therefore entitled only to workers compensation under the LHWCA, CSXT removed Shives' case to federal court under 28 U.S.C. §§ 1441 and 1331. It then moved to dismiss the case to allow Shives' administrative claim to proceed before the Department of Labor. Shives filed a motion to remand the case to the state court, arguing that he was not engaged in maritime employment and thus was entitled to pursue his negligence claim in state court under the FELA.

The district court, recognizing that in order to be covered by the LHWCA, Shives had to satisfy both the situs and status requirements of the Act, held first that Shives' injury occurred at a maritime situs. Pursuant to its status inquiry, however, it concluded that because "none of the containers or other freight carried by the incoming train on which Mr. Shives was working at the time of his accident was destined for transport by a maritime vessel, and ... only 15% of the daily container traffic handled by the terminal involved cargo from trains being transhipped from boat to train or vice versa," Shives did not meet the status test "as of the time of his injury." Accordingly, the court entered an order granting Shives' motion to remand the case to the state court.

CSXT filed this appeal from the district court's order. Because CSXT was concerned with whether the district court's order was appealable in light of 28 U.S.C. § 1447(d), it also filed a petition for a writ of mandamus to review the district court's order by virtue of our holding in Jamison v. Wiley, 14 F.3d 222 (4th Cir.1994).

II

At the outset, we must satisfy ourselves on the question of whether we have jurisdiction to review the district court's order in light of 28 U.S.C. § 1447(d) (prohibiting appellate review of remand orders), which is limited by Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 346, 352-53, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) ("[O]nly remand orders issued under § 1447(c) and invoking the grounds specified therein--that removal was improvident and without jurisdiction--are immune from review under § 1447(d).").

Shives filed this case in state court under the FELA, 45 U.S.C. § 51 et seq., which confers concurrent federal and state jurisdiction over FELA claims. See 45 U.S.C. § 56. But when filed in state court, an FELA claim may not be removed to federal court. See 28 U.S.C. § 1445(a). CSXT claimed that this case was not an FELA claim but rather a claim for federal workers compensation under the LHWCA because Shives was engaged in maritime employment at the time of his injury. It therefore removed this case to federal court under 28 U.S.C. § 1441(b) based on federal question jurisdiction conferred by 28 U.S.C. § 1331. Because the district court concluded that Shives was not engaged in maritime employment at the time of his injury and that therefore he could pursue his FELA claim, it ordered a remand based on 28 U.S.C. § 1445(a) (prohibiting the removal of FELA cases). Not sure how to obtain appellate review of the district court's order, CSXT both filed a notice of appeal and petitioned for a writ of mandamus, relying on Jamison v. Wiley, 14 F.3d 222 (4th Cir.1994).

While 28 U.S.C. § 1291 confers jurisdiction on the courts of appeals "from all final decisions of the district courts," the removal statute prohibits appellate review of district courts' orders "remanding a case to the State court from which it was removed." 28 U.S.C. § 1447(d). In Thermtron, however, the Supreme Court limited the application of § 1447(d), holding that § 1447(d) only restricted appellate review of remand orders based on § 1447(c)--a provision addressing remands where a removal was improvident or the district court was without subject matter jurisdiction. See 423 U.S. at 346, 96 S.Ct. 584; see also Jamison, 14 F.3d at 231-32. Absent the proscription of § 1447(d), it would appear that an order remanding a case to state court puts the litigants out of federal court, effectively ending the federal case, and therefore is a final order appealable under § 28 U.S.C. § 1291. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 1719, 135 L.Ed.2d 1 (1996).

In this case, the district court could not rule, in a strict sense, under § 1447(c) that it was without jurisdiction because federal courts have concurrent jurisdiction over FELA claims. See 45 U.S.C. § 56. Rather, it ruled properly that an FELA claim could not be removed from a state court to a federal court. See 28 U.S.C. § 1445(a). Moreover, its ministerial application of § 1445(a) depended on its substantive ruling that Shives was not engaged in maritime employment. This determination is probably not of the type of ruling included in 28 U.S.C. § 1447(c), see Jamison, 14 F.3d at 232, and therefore prohibited by § 1447(d). This conclusion, however, is not entirely without doubt.

It is clear that the remand order presented to us for review does not play the typical rerouting role of directing non-federal cases back to state court. The question of whether the LHWCA applies to a work-related injury is exclusively a federal question which Congress never intended for state courts to resolve. See 33 U.S.C. § 921; cf. Zapata Haynie Corp. v. Barnard, 933 F.2d 256, 258 (4th Cir.1991) (noting that interpretation of the LHWCA is a matter for the federal executive and federal appeals courts). If we were to dismiss this appeal as unreviewable under 28 U.S.C. § 1447(d), then we would be leaving in place a remand order which would commit to the state courts the decision of whether the LHWCA provided coverage to the employee. To follow that course would thus deprive the federal courts of their proper role in resolving this important issue and would circumvent Congress' intent that LHWCA coverage issues be resolved in the first instance by the Department of Labor and ultimately in the federal courts of appeals. See 33 U.S.C. §§ 919, 921.

Thus, because the coverage question of the LHWCA is a conceptual antecedent for the district court's remand order, it would appear that we are not prohibited by § 1447(d) from reviewing that order. See Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1450-51 (4th Cir. 1996). In Mangold, we held that if, after examining the district court's reasoning for remand, we determined that the order did not fall precisely under the grounds identified in § 1445(c), we were authorized to review the order on appeal. See Quackenbush, 116 S.Ct. at 1719-20. We said, "review of the remand order, because not actually based on either of the grounds specified in § 1447(c), is not barred by § 1447(d)." 77 F.3d at 1453.

If we have any doubt about the correctness of this analysis, we are authorized in these circumstances to issue a writ of mandamus. To avoid forfeiting the federal courts' role of reviewing LHWCA coverage issues is...