Injured Worker gets LHWCA, Files FELA Suit
Case Study- Bynum v. Norfolk Southern Railway Co.
The 4th Circuit says it lacks jurisdiction to review a district court order remanding to state court an injured railroad worker’s suit under the Federal Employers’ Liability Act, which defendant railroad argues is barred by the worker’s receipt of benefits under the Longshore and Harbor Workers’ Compensation Act; the appeals court dismisses the railroad’s appeal.
Plaintiff, an injured railroad brakeman, received benefits under the LHWCA. He also sued defendant Norfolk Southern Railway Company in state court under FELA, alleging negligence and damages of $30 million. Norfolk Southern filed a notice of removal and argued that the LHWCA barred any recovery under FELA. The district court granted plaintiff’s motion to remand the action to state court.
The removal statute, 28 U.S.C. § 1447(d), prohibits appellate review of district courts’ orders remanding a case to the state court from which it was removed. The statutory prohibition restricts appellate review of remand orders based on grounds in § 1447(c) and that invoke the grounds specified therein.
The district court’s decision in the present case was based on the simple fact that a FELA claim brought in state court cannot be removed to a federal court, a point plaintiff timely raised in this motion to remand. Title 28 U.S.C. § 1447(c) authorizes a remand based on a lack of subject matter jurisdiction and remand based on any defect other than lack of subject matter jurisdiction that was raised by a party within 30 days after the filing of the notice of removal. The § 1445(a) bar does not deprive courts of subject matter jurisdiction over cases to which it applies. We are thus faced with the question we did not answer in Shives v. CSX Transportation Inc., 151 F.3d 164 (4th Cir. 1998), namely whether nonremovability based on § 1445(a) is a defect other than lack of subject matter jurisdiction within the meaning of § 1447(c). We conclude that it is.
The word “defect” is not defined in § 1447 or the associated statutes. From the context of § 1447, it is apparent that “defect” refers to a failure to comply with the statutory requirements for removal provided in 28 U.S.C. §§ 1441-1453. That scope certainly encompasses § 1445(a). As such, the § 1447(d) bar applies and we lack jurisdiction to review the remand order on appeal.
Although the railroad relies on Shives in asserting that we possess appellate jurisdiction, Shives does not warrant that conclusion. In Shives, we did not decide whether a remand according to § 1445(a) was the type of ruling that § 1447(c) includes.
Because § 1447(d) deprives us of appellate jurisdiction, we also lack authority to grant mandamus relief. Norfolk Southern asserts that unless we vacate the remand order, a state court will be left to decide the question of whether the LHWCA provides a defense to plaintiff’s claims. But that is the very circumstance we faced in In re Blackwater Security Consulting LLC, 460 F.3d 576 (4th Cir. 2006), wherein we held that mandamus relief was not warranted. Granting mandamus relief here would also be inappropriate because Norfolk Southern has not made the requisite showing that its right to the issuance of the writ is clear and indisputable. It has not shown that it was clearly entitled to have the district court dismiss plaintiff’s FELA claim rather than remand it to state court.
The primary question remaining will be whether plaintiff’s prior receipt of LHWCA benefits bars his FELA claim. In the absence of any clear barrier to remanding to state court, it simply cannot be said that Norfolk Southern has a clear and indisputable right not to have the case remanded to state court.
We conclude that § 1447(d) bars review of the district court’s order by appeal or via mandamus, and Norfolk Southern has not shown a clear and indisputable right to mandamus relief.
Appeal dismissed and petition for writ of mandamus denied.
Bynum v. Norfolk Southern Railway Co. (Traxler) No. 13-2127, June 23, 2014; USDC at Norfolk, Va. (Smith) Jonathan H. Walker for appellant; William D. Breit for appellee.