In re Norfolk Southern Ry. Co.

• Citation: 592 F.3d 907
• Decision Date: 27 January 2010
• Docket Number: No. 09-2210.,No. 09-2333.,09-2210.,09-2333.
• Parties: In re NORFOLK SOUTHERN RAILWAY COMPANY, Petitioner. David Demay, Appellee, v. Norfolk Southern Railway Company, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

592 F.3d 907

In re NORFOLK SOUTHERN RAILWAY COMPANY, Petitioner.

David Demay, Appellee, v. Norfolk Southern Railway Company, Appellant.

No. 09-2210.

No. 09-2333.

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2009.

Filed: January 27, 2010.

Kurt Edward Reitz, argued, Belleville, IL, James W. Erwin and Heath H. Hooks, on the brief, St. Louis, MO, for Appellant.

Steven Lee Groves, argued, William E. Kruse, on the brief, St. Louis, MO, for Appellee.

Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.

HANSEN, Circuit Judge.

David Demay, an employee of the Norfolk Southern Railway Company (Norfolk Southern), was injured while working in Norfolk, Virginia, at the Lamberts Point Coal Terminal (Lamberts Point). A Missouri resident, Demay filed a lawsuit against Norfolk Southern in Missouri state court under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 to 60. Norfolk Southern removed the lawsuit to the United States District Court for the Eastern District of Missouri, claiming the action was governed by the Longshore and Harbor Workers' Compensation Act (Longshore Act), 33 U.S.C. §§ 901 to 950. The district court¹ determined that the action was appropriately brought under the FELA and remanded the case back to state court. Norfolk Southern appeals. For the following reasons, we affirm.

I.

Lamberts Point is a coal-loading facility that Norfolk Southern uses to load coal into oceangoing vessels. Lamberts Point is divided into four areas: the CT Yard, the Barney Yard, Pier 6, and the empty yard. Arriving loaded coal cars are stored in the CT Yard. The loaded cars are then brought into the Barney Yard and secured by setting their manual brakes. Once there, they are released one by one and roll down an incline onto one of two rotary dumpers. The dumpers rotate the cars and dump the coal onto conveyors, which move the coal to Pier 6 to be deposited into the holds of oceangoing colliers. Once the cars are unloaded, they are moved to the empty yard to return to the coal mines for refilling.

Demay, a railroad switchman/conductor employed by Norfolk Southern, lives in Huntsville, Missouri. On October 22, 2008, he was temporarily working at Lamberts Point when he was injured. Demay's crew's job was to place (i.e., "spot") the rail cars in the Barney Yard and set their handbrakes to keep them in place. Other workers later would release the cars, sending them down the incline to the rotary dumpers. At the time of the injury, his crew was spotting rail cars loaded with coal in the Barney Yard. Demay climbed onto the lead loaded car and directed the movement of the string of loaded cars into the Barney Yard while communicating by radio with the locomotive engineer at the other end of the moving cars. When the cars were in their proper place, Demay told the engineer to stop the train. While climbing down off the car, Demay fell and landed on the track, breaking several ribs.

Demay filed a lawsuit in the Circuit Court of St. Louis County, Missouri, to recover for his injuries under the FELA. A case filed in state court under the FELA may not be removed to federal court by the defendant. See 28 U.S.C. § 1445(a) ("A civil action in any State court against a railroad ... arising under [45 U.S.C. §§ 51 to 60] may not be removed to any district court of the United States."). However, Norfolk Southern removed Demay's suit to federal court, claiming that Demay's claims are controlled exclusively by the Longshore Act because Demay was engaged in maritime employment at the time of his injury. To be covered by the Longshore Act, an employee must be injured while working: (1) at a maritime situs; and (2) in a maritime status. Ne. Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 265, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977). Both parties agree that Demay was working at a maritime situs. The district court held that Demay was not working in a maritime status, and it found that his injury was covered by the FELA, not the Longshore Act, and it therefore lacked removal jurisdiction to review the claim. The district court thus remanded the case to the state court.

Norfolk Southern appeals. On appeal, Demay argues that we cannot review the district court's decision because we lack jurisdiction to review the district court's order under 28 U.S.C. § 1447(d), which precludes a court of appeals from reviewing a district court's order remanding a case to state court based on lack of subject matter jurisdiction. Norfolk Southern, however, argues that we have jurisdiction to review the district court's order deciding the Longshore Act issue and the order of remand. It further argues that Demay was injured while working in a maritime status and that we should issue a writ of mandamus directing the district court to dismiss the action without prejudice and permit the Department of Labor (DOL) to resolve Demay's claim.²

II.

A.

We must first address the question of our jurisdiction. "Congress has limited our power to review district court remand orders." Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th Cir.2003). The court's "ability to review the order depends on the district court's basis for remand. A remand order based upon lack of subject-matter jurisdiction is not reviewable on appeal." Id. "If a district court's order is based upon a lack of subject-matter jurisdiction, the order—whether erroneous or not and whether review is sought by appeal or by extraordinary writ—must stand." Id. When determining the basis for remand, "`[t]his court reviews a lower court's reasoning for remand independently and determines from the record the district court's basis for remand.'" Id. (quoting Lindsey v. Dillard's, Inc. 306 F.3d 596, 598 (8th Cir. 2002)).

According to 28 U.S.C. § 1447(c), "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. ... The State court may thereupon proceed with such case." Section 1447(d) states that, "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ..." In analyzing 28 U.S.C. § 1447(c) and (d), the Supreme Court has explained that they should be read together. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343-44, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) (holding that a remand was reviewable and ultimately improper when the district court remanded to state court based on the district court's heavy docket, which was not provided for in § 1447(c)).

When a plaintiff files an FELA complaint in state court, a defendant may not remove the lawsuit to federal court. See 28 U.S.C. § 1445(a) ("A civil action in any State court against a railroad ... arising under [45 U.S.C. §§ 51 to 60] may not be removed to any district court of the United States."); Evans v. Mo. Pac. R.R. Co., 795 F.2d 57, 58-59 (8th Cir.1986) ("[I]f the employee chooses to bring an FELA claim in state court, section 1445(a) protects [the] plaintiff's right to bring the action there and prevents removal to the federal district court by the railroad."), cert. denied, 481 U.S. 1013, 107 S.Ct. 1886, 95 L.Ed.2d 494 (1987). After Norfolk Southern removed the case to federal court, the district court remanded the case to state court because § 1445(a) prohibited removal.

Demay argues that because the district court remanded the case to state court based on the prohibition of removal in § 1445(a), the district court effectively remanded based on lack of subject matter jurisdiction, which would preclude us from reviewing the remand order under § 1447(c) and (d). Norfolk Southern, however, argues that the remand order was merely a straightforward application of § 1445(a) and that in remanding the case to state court, the district court made no determination regarding subject matter jurisdiction.

We have not previously addressed the issue of whether § 1445(a) is jurisdictional. However, we have implicitly held that 28 U.S.C. § 1445(c), which is parallel to § 1445(a), is not jurisdictional.³ In Bloom v. Metro Heart Group of St. Louis, Inc., 440 F.3d 1025 (8th Cir.2006), a plaintiff filed a complaint against her employer, claiming violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 to 2654, and workers' compensation laws. The case was removed to federal court by the employer, and the district court granted summary judgment in favor of the employer on the FMLA claim. We affirmed and, in a footnote at the end of our opinion, stated that, in her brief, the plaintiff "ask[ed] in passing that if this court affirms summary judgment on the FMLA claim, it remand the workers' compensation claim to state court, citing 28 U.S.C. § 1445(c). [The plaintiff] waived this argument when she did not timely move for remand in district court, on this ground." Bloom, 440 F.3d at 1031 n. 2 (emphasis added). Like Bloom, in Phillips v. Ford Motor Co., 83 F.3d 235 (8th Cir.1996), in discussing the procedural history of the case before resolving the merits, we stated that the plaintiff had filed a complaint against the defendants on a workers' compensation claim, but that the defendants had removed the case to federal court based on diversity jurisdiction. We explained that "[a]ctually, the district court lacked removal jurisdiction by operation of 28 U.S.C. § 1445(c) (civil action in state court arising under workers' compensation laws of that state may not be removed). However, plaintiffs failed to timely move for remand." Phillips, 83 F.3d at 236 n. 3 (emphasis added) (citation omitted). If § 1445 truly involved subject matter jurisdiction, it could not be waived, as parties cannot waive subject matter jurisdiction. See United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (explaining that "subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived").

While § 1445(a) does involve a different...