Bynum v. Norfolk Southern Railway Co.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2112

In re: NORFOLK SOUTHERN RAILWAY COMPANY,

Petitioner.

No. 13-2127

GILBERT BYNUM,

Plaintiff-Appellee,

v.

NORFOLK SOUTHERN RAILWAY COMPANY

Defendant–Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:13-cv-00373-RBS-LRL)

Argued: May 15, 2014 Decided: June 23, 2014

Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.

Appeal dismissed and petition for writ of mandamus denied by
published opinion. Chief Judge Traxler wrote the opinion, in
which Judge Niemeyer and Judge Duncan joined.
ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER & HEDRICK,
PC, Newport News, Virginia, for Appellant. William D. Breit,
SERIOUS INJURY LAW CENTER PLLC, Virginia Beach, Virginia, for
Appellee. ON BRIEF: Christopher R. Hedrick, MASON, MASON,
WALKER & HEDRICK, PC, Newport News, Virginia; Danielle M. Kruer,
Daniel R. Warman, VENTKER & WARMAN, PLLC, Norfolk, Virginia, for
Appellant.

2
TRAXLER, Chief Judge:

Norfolk Southern Railway Company (“Norfolk Southern”)

appeals a district court order remanding to state court a claim

brought against it pursuant to the Federal Employers’ Liability

Act (“FELA”), 45 U.S.C. § § 51-60. Norfolk also petitions for a

writ of mandamus vacating the district court’s order and either

dismissing the case or, alternatively, remanding to the district

court to address the merits of its federal defense to the FELA

claim. We conclude that we lack jurisdiction to review the

district court’s order on appeal and therefore dismiss the

appeal. We also deny mandamus relief.

I.

Gilbert Bynum was employed by Norfolk Southern as a control

operator and brakeman at Lamberts Point Coal Terminal. The

terminal, which was created for the purpose of loading coal from

railroad cars onto ocean-bound vessels, was located on the

Elizabeth River in Norfolk, Virginia. It was Bynum’s job to

release the brakes of loaded coal cars so that the cars would

roll downhill into a rotary dumper, which would in turn “rotate

the coal car 180 degrees and dump the coal onto conveyors, which

move the coal onto [the pier] for deposit into the holds of coal

ships.” J.A. 43. On November 22, 2010, Bynum was injured when,

while walking to recover a radio transmitter, “he tripped and

fell on coal dust and debris that had been allowed to accumulate

3
between and aside the railroad tracks.” J.A. 10. Bynum

subsequently applied for, and was awarded, federal workers’

compensation benefits under the Longshore and Harbor Workers’

Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950.

Bynum later filed suit in state court on May 29, 2013,

under FELA, which, as is relevant here, provides railway

employees with the right to recovery for injury or death caused

in whole or in part by the negligence of the railroad’s

officers, agents, or employees. 1 See 45 U.S.C. § 51; see

Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436

(4th Cir. 1999). Bynum alleged negligence on the part of

Norfolk Southern and sought $30 million in damages.

On July 3, 2013, Norfolk Southern filed a notice of removal

to federal court, arguing that Bynum had applied for and

received benefits under the LHWCA, that the LHWCA in fact

covered his injury, and that the LHWCA barred any recovery under

FELA. See Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 42

(1989). The Railroad contended that whether Bynum’s injury

was covered by the LHWCA was “‘exclusively a federal question

which Congress never intended for state courts to resolve.’”

J.A. 6 (quoting Shives v. CSX Transp., Inc., 151 F.3d 164, 167

1
FELA provides for concurrent federal and state
jurisdiction over FELA claims. See 45 U.S.C. § 56.

4
(4th Cir. 1998)). On this basis, Norfolk Southern maintained

that removal was proper under 28 U.S.C. §§ 1441 and 1446.

On July 15, 2013, Bynum moved to remand the matter to state

court. Bynum cited 33 U.S.C. §§ 919 and 921, which provide that

LHWCA claims are adjudicated in the first instance by the

Department of Labor (“DOL”), with appeals considered by the

Benefits Review Board, and appeals from those decisions

considered by the United States Courts of Appeals. Bynum

alleged that the district court lacked “jurisdiction to

determine coverage under the LHWCA because Congress has

specifically eliminated the jurisdiction of the federal district

court concerning the LHWCA.” J.A. 18. Bynum’s motion also

asserted that his “claim is not removable pursuant to 28 U.S.C.

§ 1445(a)” − which bars removal of FELA claims brought in state

court 2 − “and [that] it is not removable under 28 U.S.C. § 1441

or § 1446.” 3 J.A. 18.

2
Section 1445(a) provides that “[a] civil action in any
State court against a railroad or its receivers or trustees,
arising under sections 1-4 and 5-10 of the Act of April 22, 1908
(45 U.S.C. §§ 51-54, 55-60) may not be removed to any district
court of the United States.”
3
As is relevant here, 28 U.S.C. § 1441(a) provides that

[e]xcept as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
which the district courts of the United States have
original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United
(Continued)
5
 That same day, July 15, 2013, Norfolk Southern filed a

motion in federal district court to dismiss Bynum’s complaint,

arguing that, although his claim was filed under FELA, his

injury actually fell within the scope of the LHWCA’s coverage

and the LHWCA therefore provided the exclusive remedy for his

injury. See 33 U.S.C. § 905(a). On that basis, Norfolk

Southern maintained that Bynum’s claim should have been filed

with the DOL, see 33 U.S.C. § 919, and that both the district

court and the state court lacked jurisdiction over the claim.

On July 18, 2013, Bynum filed a response to Norfolk

Southern’s motion to dismiss. He noted that he did “not concede

that the exclusivity provisions of the LHWCA apply in this

case.” J.A. 55. He argued that 33 U.S.C. § 905(a), applying to

suits against employers, would not bar a negligence claim under

§ 905(b) against a vessel owner in his capacity as owner rather

than employer. He also maintained that “[t]he courts have not

decided whether a railroad worker may sue his employer under 33

U.S.C. § 905(a) in its railroad capacity, where as in this case,

the defendant admits Bynum was retrieving a radio transmitter at

the time of his injury.” J.A. 55. Bynum noted that his remand

States for the district and division embracing the
place where such action is pending.

28 U.S.C. § 1441(a). Section 1446 outlines the applicable
procedure for removal of civil actions.

6
motion remained pending and that the state court would have

jurisdiction to resolve the question of whether the exclusivity

provisions of the LHWCA barred his FELA claim.

On July 24, 2013, Norfolk Southern responded to Bynum’s

motion to remand. Conceding that Ҥ 1445(a) prevents removal of

an FELA action filed in state court,” Norfolk Southern

nonetheless contended that it had “not removed this case to

litigate Bynum’s FELA claim, but to determine whether that claim

is barred” by virtue of the fact that Bynum’s injury fell within

the scope of LHWCA’s coverage. J.A. 59. Norfolk Southern

argued that Bynum’s injury was covered by the LHWCA under the

facts of this case and that the LHWCA therefore provided the

exclusive remedy.

The district court granted Bynum’s remand motion and denied

as moot Norfolk Southern’s motion to dismiss. The court noted

that 28 U.S.C. § 1441(a) allows removal of any civil action that

was brought in state court but which the district court had

jurisdiction over “‘[e]xcept as otherwise expressly provided by

Act of Congress.’” J.A. 90 (emphasis in original). Recognizing

that “[s]ection 1445(a) prohibits the removal of a civil action

arising under FELA[] which is filed in state court against a

railroad,” the district court concluded that Bynum’s FELA “claim

must be remanded to state court.” J.A. 90.

7
 The district court acknowledged Norfolk Southern’s argument

that because Bynum “has already received LHWCA benefits, the

exclusivity provisions of the LHWCA bar further recovery under

FELA.” J.A. 91. However, the district court did not determine

whether Bynum’s injury actually fell within the scope of LHWCA’s

coverage or whether the LHWCA otherwise barred recovery under

FELA. Rather, the district court concluded that the mere facts

that Bynum brought his action in state court, that he asserted a

claim under FELA (and that he timely moved to remand his action

to state court once Norfolk Southern filed a notice of removal)

were sufficient to trigger the § 1445(a) removal bar. The court

therefore remanded Bynum’s claim to state court without

considering the merits of Norfolk Southern’s motion to dismiss.

Norfolk Southern timely appealed to us, and it also filed a

petition for a writ of mandamus requesting us to vacate the

district court’s order and either dismiss the case or

alternatively remand to the district court to address the merits

of its federal defense to the FELA claim. We agreed to consider

the mandamus petition together with the related appeal, and thus

the two cases were consolidated. Bynum subsequently moved to

dismiss the appeal as barred by 28 U.S.C. § 1447(d) and to have

the mandamus petition denied for the same reason.

II.

8
 We first address the question of whether we are authorized

to review the merits of the district court’s remand order. We

conclude that we are not.

A. Applicable Legal Principles

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). The statute serves to

“neutralize ‘prolonged litigation on threshold nonmeritorious

questions.’” Barlow v. Colgate Palmolive Co., 2014 WL 1689002,

at *4 (4th Cir. 2014) (quoting Powerex Corp. v. Reliant Energy

Servs., Inc., 551 U.S. 224, 237 (2007)). We have explained that

this policy is so strong that § 1447(d) bars our review “even if

the remand order is manifestly, inarguably erroneous.” Lisenby

v. Lear, 674 F.3d 259, 261 (4th Cir. 2012) (internal quotation

marks omitted).

Nevertheless, § 1447(d)’s prohibition on appellate review

has itself been limited, first in Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 346 (1976). In that case, the

Supreme Court held that § 1447(d) only restricts appellate

review of remand orders that are “based on grounds in § 1447(c)”

and that “invoked the grounds specified therein.” E.D. ex rel.

Darcy v. Pfizer, Inc., 722 F.3d 574, 579 (4th Cir. 2013)

(alteration and internal quotation marks omitted). Section

1447(c) provides in relevant part that “[a] motion to remand the

9
case on the basis of any defect other than lack of subject

matter jurisdiction must be made within 30 days after the filing

of the notice of removal under section 1446(a).” Thus,

§ 1447(c) allows a district court to remand “based on: (1) a

district court’s lack of subject matter jurisdiction or (2) a

defect in removal ‘other than lack of subject matter

jurisdiction’ that was raised by the motion of a party within 30

days after the notice of removal was filed.” Ellenburg v.

Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008)

(quoting 28 U.S.C. § 1447(c)). And, § 1447(d) generally bars

our review of a remand that is ordered on one of these bases.

See id.

The § 1447(d) prohibition on appellate review was further

limited by this court in Borneman v. United States, 213 F.3d

819, 826 (4th Cir. 2000), wherein we held that district courts

did not have authority to remand on a basis generally authorized

by § 1447(c) when a more specific statute would prohibit remand.

In such a case, § 1447(d) does not bar our review. See id.

Finally, even when § 1447(d) prohibits our review of a

remand order itself, the severability exception fashioned by the

Supreme Court in City of Waco v. U.S. Fidelity & Guaranty Co.,

293 U.S. 140 (1934), can authorize our review of issues

collateral to the remand order. See Palmer v. City Nat. Bank of

W. Va., 498 F.3d 236, 240 (4th Cir. 2007). However, we

10
“restrict[] the applicability of the Waco exception to

purportedly reviewable orders that (1) have a preclusive effect

upon the parties in subsequent proceedings and (2) are

severable, both logically and factually, from the remand order.”

Id. The exception does not allow reversal of the remand order

itself. See Powerex Corp., 551 U.S. at 236.

Two of our decisions, Shives v. CSX Transportation, Inc.,

151 F.3d 164 (4th Cir. 1998), and In re Blackwater Security

Consulting, LLC, 460 F.3d 576 (4th Cir. 2006), figure

prominently in our analysis of § 1447(d), and we therefore begin

by discussing them in some detail.

B. Shives

In Shives, a railroad employee injured in a work-related

accident (“Shives”) filed a negligence suit against his employer

in state court under FELA and also filed a protective claim with

the DOL under the LHWCA. See Shives, 151 F.3d at 166.

Contending that Shives was engaged in maritime employment and

therefore entitled only to workers compensation under the LHWCA,

the employer removed the case to federal district court and

moved to dismiss the case to allow Shives’s administrative claim

to proceed before the DOL. See id. Shives moved to remand the

case to state court, arguing that he was not engaged in maritime

employment and thus had the right to litigate his negligence

claim in state court under FELA. See id. The district court

11
concluded that Shives’s injury was actually not covered by the

LHWCA and thus remanded the case to state court. See id. The

employer appealed the remand order and also filed a petition for

writ of mandamus seeking review of the order. See id.

We began with the question of whether we possessed

jurisdiction to consider the merits of the appeal. We

determined that the district court had not remanded based on a

conclusion that it lacked subject-matter jurisdiction, but

instead on the basis that § 1445(a) prohibited removal. See id.

at 167. However, we noted that the district court’s conclusion

that § 1445(a) prohibited removal was in turn based on the

court’s substantive ruling that Shives’s injury fell outside the

scope of LHWCA coverage. See id. We expressed some doubt as to

whether that ruling was of the type included in § 1447(c). See

id. In the end, however, we determined, apparently on the basis

of the Waco severability exception to § 1447(d), that whether

remand was on a basis included in § 1447(c) was immaterial since

the conclusion that the LHWCA did not provide coverage was a

“conceptual antecedent” to the court’s ruling that § 1445(a)

barred removal. Id.; see Blackwater, 460 F.3d at 588. We

reasoned that the LHWCA-coverage question was “exclusively a

federal question which Congress never intended for state courts

to resolve” and that insofar as the basis for the remand order

“did not fall precisely under the grounds identified in”

12
§ 1447(c), we could exercise appellate jurisdiction. Shives,

151 F.3d at 167. 4 Alternatively, we concluded that even if our

analysis of the appellate jurisdiction issue were incorrect, we

would vacate the remand order via mandamus in order “[t]o avoid

forfeiting the federal courts’ role of reviewing LHWCA coverage

issues.” Id.

We then addressed the merits of the issue of whether the

LHWCA provided coverage, concluding that it did. See id. at

168-71. We further reasoned that “LHWCA coverage is exclusive

and preempts Shives from pursuing an FELA claim.” Id. at 171.

Having determined that LHWCA covered Shives’s injury and

that it barred Shives’s FELA claim, we were “left with a

procedural conundrum” regarding the remedy to be applied. Id.

Although the district court had incorrectly determined that the

LHWCA did not cover Shives’s injury, its determination that

removal was improper was nevertheless correct for two reasons:

First, § 1445(a) prohibits the removal of FELA cases brought in

state court, and second, district courts do not have original

jurisdiction over LHWCA cases and § 1441 allows removal only of

cases that could have been brought in district court in the

first instance. See id. At the same time, the state court

4
Our opinion actually refers to 1445(c) rather than
§ 1447(c), but that appears to be the result of a typographical
error.

13
would not have jurisdiction over Shives’s (now recharacterized)

claim because state courts do not have jurisdiction over LHWCA

claims. See id. We concluded “[i]n the peculiarities of th[at]

case,” that had the district court correctly analyzed the LHWCA-

coverage question and determined that the LHWCA covered Shives’s

injuries, the proper remedy would have been to simply dismiss

the action and allow Shives to proceed through the appropriate

administrative process. See id. We noted that dismissing would

have allowed the district court to avoid “committing the federal

question of LHWCA coverage to the state court when Congress

intended that it be decided exclusively in federal court.” Id.

We therefore vacated the district court’s remand order and

remanded the case to the district court with instructions to

dismiss for lack of subject-matter jurisdiction. See id.

C. Blackwater

Now we turn to Blackwater. In that case, according to the

complaint, several men (“the decedents”) entered into

independent-contractor service agreements with two companies

(collectively, “Blackwater”) to provide services supporting

Blackwater’s contracts with third parties. See Blackwater, 460

F.3d at 580. Blackwater assigned the decedents to provide

security for a company that had an agreement to provide various

forms of support to a defense contractor that was providing

services for the United States Armed Forces in support of its

14
operations in Iraq. See id. According to the complaint,

Blackwater had represented to the decedents when they entered

into their independent-contractor agreements that certain

precautionary measures would be taken, but that in fact those

measures were not taken and the decedents were ultimately killed

as a result. See id. at 580-81. The administrator of the

decedents’ estates sued Blackwater as well as the man who had

been the decedents’ supervisor (hereinafter, collectively,

“Blackwater”) in North Carolina state court alleging state-law

claims for wrongful death and fraud. See id. at 581.

Blackwater subsequently removed the action to federal district

court, asserting that the Defense Base Act (“DBA”), 42 U.S.C.

§§ 1651 – 1654, completely preempted the state-law claims and

that the case presented issues concerning unique federal

interests that created a federal question. 5 See id. Blackwater

then moved the district court to dismiss the action on the basis

of lack of subject-matter jurisdiction because the claims were

covered by the DBA and thus could be litigated only in the DOL,

which has jurisdiction over DBA claims in the first instance.

See id.

5
“The DBA is a federal statute that incorporates and
extends the [LHWCA] to select forms of employment outside of the
United States.” Nordan v. Blackwater Sec. Consulting, LLC, 382
F. Supp. 2d 801, 807 (E.D.N.C. 2005), appeal dismissed, mandamus
denied by In re Blackwater Sec. Consulting, LLC, 460 F.3d 576
(4th Cir. 2006).

15
 The district court determined that it lacked subject-matter

jurisdiction over the case, concluding that the DBA did not

completely preempt the state-law claims and that Blackwater’s

assertion of a unique federal interest in the claims was based

on the incorrect assumption that the district court had

jurisdiction to determine whether the decedents were covered

under the DBA. See id. at 581. Based on its conclusion that it

lacked subject-matter jurisdiction, the district court remanded

the case to state court under § 1447(c). See id. Blackwater

had urged the district court to instead remedy the lack of

jurisdiction by dismissing the case as barred by the DBA. See

id. at 581-82. However, the district court determined that it

lacked jurisdiction to decide whether the DBA covered the

claims. See id. at 582.

Blackwater appealed the remand order to this court and

petitioned for a writ of mandamus. See id. We held that we

lacked appellate jurisdiction and we declined to order mandamus

relief. See id. In analyzing the appellate-jurisdiction

question, we began by noting that the district court had clearly

remanded the case on a basis included in § 1447(c) insofar as

remand was based on the district court’s determination that it

lacked subject-matter jurisdiction. See id. at 585; see also

id. at 591-92. Accordingly, we concluded that § 1447(d)

16
prohibited us from reviewing the merits of the appeal. See id.

at 585.

We also considered an argument by Blackwater that the Waco

severability exception allowed us to review the district court’s

mootness-based denial of Blackwater’s motion to dismiss. We

concluded that the exception did not allow our review because

the denial of the motion on mootness grounds had no preclusive

effect and because it was not logically and factually severable

from the remand order. See id. at 588-90. Regarding the

preclusive effect, we noted that “[o]ne of the first principles

of preclusion . . . is that the precluding order either actually

determined the issue sought to be precluded (in the case of

issue preclusion) or issued a final judgment on the merits (in

the case of claims preclusion).” Id. at 589 (citing Martin v.

American Bancorporation Ret. Plan, 407 F.3d 643, 650, 653 (4th

Cir. 2005)). We also specifically distinguished our

severability-exception analysis in Shives on the basis of two

differences in procedural posture between the cases. First,

unlike in Shives, wherein we expressed doubt regarding whether

the district court had remanded on a basis included in § 1447(c)

– and thus whether § 1447(d) applied – the remand in Blackwater

was clearly based on lack of subject-matter jurisdiction, which

is plainly a ground included in § 1447(c). See id. at 587-88.

Second, the district court in Blackwater did not reach the

17
question of whether the DBA covered the alleged injuries,

whereas the district court in Shives did determine that the

LHWCA covered the plaintiff injury and that determination was a

“conceptual antecedent” to the court’s remand decision. See id.

at 588.

We also considered whether we had jurisdiction under the

Waco severability exception to review the district court’s

determinations that the DBA did not completely preempt the

state-law claims and that no unique federal interest created a

federal question that would provide removal jurisdiction. See

id. at 590. We concluded that neither ruling could be reviewed

under Waco because neither would have any preclusive effect on

Blackwater and neither could be disengaged from the remand

order. See id. 6

We next considered whether we could review the remand order

via mandamus. Noting that the Supreme Court has interpreted

§ 1447(d) to prohibit not only appellate review but also review

via mandamus, we concluded we were precluded from granting

mandamus relief. See id. at 593.

6
Although it is not relevant to the present case, we
also declined Blackwater’s request to create a new exception to
§ 1447(d)’s prohibition for cases “undermin[ing] the
constitutional sequestration of foreign affairs and war powers
within the political branches of the federal government, out of
reach of both the federal and the state judiciaries.”
Blackwater, 460 F.3d at 592.

18
 We further determined that there was no tension between the

DBA and § 1447(d) of the type that could authorize mandamus

relief. See id. at 593-94 (distinguishing Borneman, 213 F.3d at

826). We noted that “the statute ‘in tension’ with § 1447(d) in

Borneman declared that certain state-court actions against

federal employees ‘shall be removed.’ 28 U.S.C. § 2679(d)(2).”

Blackwater, 460 F.3d at 593. Accordingly, we observed:

That statute thus directly and specifically addressed
the removability of the relevant class of claims and
contained language that channeled the district court’s
authority to remand in such cases. This absence of
discretion to remand created the tension of which we
spoke in Borneman. By contrast, Blackwater has not
identified any portion of the DBA that similarly
addresses either the removability to federal district
court of state court actions purportedly preempted by
the DBA or the district court’s peculiar lack of
discretion with respect to remand of such cases.

Id. at 593-94 (citation omitted).

We also rejected the notion that the DBA defense presented

such “extraordinarily important question[s] of federal law” that

mandamus relief would be appropriate to prevent the state court

from adjudicating it. Id. at 594. In this regard, we noted

that neither the Supreme Court’s decision in Thermtron nor our

prior decisions provided a basis for circumventing 1447(d)’s

prohibition in order to avoid having a state court decide a

federal issue. See id. Distinguishing Shives specifically, we

noted that Shives “presented the court of appeals with an order

in which the district court actually decided . . . as part of

19
its inquiry into the permissibility of removal, whether the

LHWCA covered the plaintiff’s claims” whereas in Blackwater “we

ha[d] no coverage question to review – and rightfully so, as the

district court did not need to reach that issue as part of its

removal jurisdiction analysis.” Id. at 594-95. We also

distinguished Shives on the basis that Shives presented “an

uncontested factual record” on which to decide the coverage

question, whereas in Blackwater, we had only the pleadings to

consider. Id. at 594-95. In light of both of these

distinctions, we concluded that “mandamus is not only not

compelled by Shives but is also particularly inappropriate.”

Id. at 595.

D. Appellate Review Analysis

Having outlined the applicable legal principles, we now

turn to the facts of the case before us. 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, see 28 U.S.C. § 1445(a), a point that Bynum had timely

raised in his motion to remand. As we have explained, § 1447(c)

authorizes 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.” 28 U.S.C.

20
§ 1447(c). 7 The § 1445(a) bar does not deprive courts of

subject-matter jurisdiction over cases to which it applies. See

Shives, 151 F.3d at 167 (explaining that “the district court

could not rule . . . that it was without jurisdiction because

federal courts have concurrent jurisdiction over FELA claims”).

We are thus faced with the question that we did not answer in

Shives, 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. However, the sixth edition of Black’s Law

Dictionary, which was the edition that was current when

§ 1447(c) was amended, defines “defect” as “[t]he want or

absence of some legal requisite; deficiency; imperfection;

insufficiency.” Black’s Law Dictionary 418 (6th ed. 1990).

“Defect” is similarly defined in Webster’s Third New

7
Prior to 1996, § 1447(c) provided as follows:

A motion to remand the case on the basis of any defect
in removal procedure must be made within 30 days after
the filing of the notice of removal under section
1446(a). If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c) (1995) (emphasis added). In 1996, the
statute was amended to substitute the words “any defect other
than lack of subject matter jurisdiction” for “any defect in
removal procedure.” Pub. L. No. 104-219, 110 Stat. 3022 (1996).

21
International Dictionary as “want or absence of something

necessary for completeness, perfection, or adequacy in form or

function.” Webster’s Third New International Dictionary 591

(1981).

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.” Kamm v. ITEX

Corp., 568 F.3d 752, 755 (9th Cir. 2009); see Cook v. Wikler,

320 F.3d 431, 435 (3d Cir. 2003) (holding that “the plain

language of [§ 1447(c)] now applies broadly to include all

removals that are not authorized by law” (internal quotation

marks omitted)). That scope certainly encompasses § 1445(a).

See Albarado v. Southern Pac. Transp. Co., 199 F.3d 762, 766

(5th Cir. 1999) (holding that “remand based upon § 1445(a)’s

statutory restriction against removal is a procedural defect

under § 1447(c), and the district court’s remand order based

thereupon is not subject to appellate review”); see also Vasquez

v. North Cnty. Transit Dist., 292 F.3d 1049, 1062 (9th Cir.

2002) (holding that nonremovability under 28 U.S.C. § 1445(c),

which prohibits removal of civil cases arising under state

workmen’s compensation law, is a “defect other than lack of

subject matter jurisdiction” within the meaning of § 1447(c));

Pierpoint v. Barnes, 94 F.3d 813, 816-21 (2d Cir. 1996)

(applying pre-1996-amendment version of 28 U.S.C. § 1447(c) and

22
holding that court of appeals lacked jurisdiction to review

remand to state court based on district court’s determination

that claims brought in state court under the Death on the High

Seas Act were not removable). 8 As such, the § 1447(d) bar

applies, and we lack jurisdiction to review the remand order on

appeal. 9

8
In re Norfolk Southern Railway Co., 592 F.3d 907 (8th
Cir. 2010), cited by Norfolk Southern, does little to advance
its cause. In that case, the plaintiff brought a FELA claim in
state court. See id. at 910. The defendant removed the action
based on the contention that the LHWCA covered the injury and
barred recovery under the FELA. See id. However, the district
court concluded that the LHWCA did not cover the plaintiff’s
injury, and thus that the claim was properly brought under FELA.
See id. Accordingly, the district court remanded to state court
based on the conclusion that § 1445(a) barred removal of the
claim. See id. at 910-11. The defendant appealed and
petitioned for mandamus relief. See id. The plaintiff argued
that § 1447(d) barred review of the remand order because the
order was based on a lack of subject-matter jurisdiction. See
id. at 910. Concluding that a § 1445(a) defect is not
jurisdictional, the Eighth Circuit held that § 1447(d) did not
bar appellate review of the remand order. See id. at 912.
However, the court did not specifically address whether
nonremovability under § 1445(a), if timely raised, qualifies as
a “defect other than lack of subject matter jurisdiction” within
the meaning of § 1447(c).
9
For the same reasons that we held that there was no
tension-creating statute in Blackwater that would bar the
district court from remanding to state court and negate the
application of § 1447(d), see 460 F.3d at 593-94 (distinguishing
Borneman v. United States, 213 F.3d 819, 826 (4th Cir. 2000)),
there is no such tension-creating statute here. After all, the
federal defense asserted by the employer in Blackwater, that the
LHWCA provided the exclusive remedy for the plaintiffs’
injuries, is the same defense that Norfolk Southern asserts here
except for the fact that Blackwater asserted a defense under the
DBA, which “extends the [LHWCA] to select forms of employment
(Continued)
23
 Although Norfolk Southern relies on Shives in asserting

that we possess appellate jurisdiction, Shives does not warrant

that conclusion. As we have noted, in Shives we did not decide

whether a remand according to § 1445(a) was the type of ruling

that § 1447(c) includes. See Shives, 151 F.3d at 167

(explaining that the district court’s “ministerial application

of § 1445(a) depended on its substantive ruling that Shives was

not engaged in maritime employment” and noting that “[t]his

determination is probably not of the type of ruling included in

28 U.S.C. § 1447(c)” although “[t]his conclusion . . . is not

entirely without doubt”).

As we noted in Blackwater, our appellate review in Shives

was based on the fact that the district court’s decision that

the LHWCA covered Shives’s injury was a “conceptual antecedent”

to the remand order. Blackwater, 460 F.3d at 587, 588 (internal

quotation marks omitted). Here, in contrast, the district court

did not reach the merits of the coverage question as it denied

Norfolk Southern’s motion to dismiss on mootness grounds. Thus,

for the same reasons we articulated in Blackwater, the Waco

severability exception does not allow our review of that ruling.

Namely, the district court’s dismissal of the motion to dismiss

outside of the United States,” Nordan, 382 F. Supp. 2d at 807,
whereas Norfolk Southern simply asserts an LHWCA defense
directly.

24
on mootness grounds had no preclusive effect since the court did

not resolve the merits of the issue and there was no final

judgment on the merits; nor was the denial of that motion

logically and factually severable from the remand order. See

id. at 588-90. Furthermore, since our decision in Shives, the

Supreme Court has further clarified the scope of the Waco

severability exception by holding that it “does not permit an

appeal when there is no order separate from the unreviewable

remand order.” Powerex, 551 U.S. at 236 (emphasis in

original)). The fact that there is no such separate order here

is yet another reason why the Waco exception does not provide us

with jurisdiction over Norfolk Southern’s appeal.

E. Mandamus Analysis

Because § 1447(d) deprives us of appellate jurisdiction, we

also lack authority to grant mandamus relief. Congress’s

restriction on review of remand orders applies to review “on

appeal or otherwise.” 28 U.S.C. § 1447(d). “The Supreme Court

has interpreted this language to forbid the use of mandamus to

circumvent the requirements of § 1447(d).” Blackwater, 460 F.3d

at 593 (citing Thermtron, 423 U.S. at 343)); see Borneman, 213

F.3d at 824.

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 Bynum’s claims. But

25
that is the very circumstance we faced in Blackwater, wherein we

held that mandamus relief was not warranted. See 460 F.3d at

592-95. In distinguishing the facts that were before us in that

case from those in Shives – wherein we concluded that we could

grant mandamus relief regardless of whether § 1447(d) barred

review on appeal, see 151 F.3d at 167 – we noted that the fact

that the district court in Shives actually decided the question

that the LHWCA covered the alleged injury was “a key

difference.” Blackwater, 460 F.3d at 594. We conclude as well

here that with the district court not having reached the merits

of Norfolk Southern’s LHWCA defense, Shives does not warrant our

granting mandamus relief.

Moreover, 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.” Media Gen. Operations, Inc. v.

Buchanan, 417 F.3d 424, 433 (4th Cir. 2005); see also In re

Grand Jury Subpoena, 596 F.2d 630, 632 (4th Cir. 1979) (per

curiam) (holding that there was no showing of “a clear and

indisputable right” when the issue was “close”). Specifically,

Norfolk Southern has not shown that it was clearly entitled to

have the district court dismiss Bynum’s FELA claim rather than

remand it to the state court.

26
 The facts of this case, after all, are quite different than

those that were before us in Shives. In Shives, the district

court’s decision to remand was based on its conclusion that the

LHWCA did not cover Shives’s injury, see Shives, 151 F.3d at

166, and there is no indication that Shives had disputed that

his FELA claim would be barred if the LHWCA covered his injury.

On appeal, we concluded that the LHWCA in fact did cover

Shives’s injury and therefore that his FELA claim was barred.

See id. at 168-71. Having determined that Shives actually had

no FELA claim, we concluded that remand to state court was not a

possibility as “[s]tate courts . . . do not have jurisdiction

over LHWCA cases.” Id. at 171; see id. (“[W]e are faced with an

LHWCA case over which neither the state court nor the district

court had jurisdiction.”). We also decided against remanding to

state court to avoid “committing the federal question of LHWCA

coverage to the state court when Congress intended that it be

decided exclusively in the federal court.” Id.

In this case, neither of these considerations stands in the

way of a remand to state court. First, neither the district

court nor our court has addressed the LHWCA coverage question; 10

10
Norfolk Southern had no clear and undisputable right
even to have the district court decide the merits of the LHWCA
coverage question. Indeed, in Blackwater, we noted that we
“rightfully” had “no coverage question to review” when “the
(Continued)
27
thus, Bynum’s FELA claim continues to exist and the state court

would have jurisdiction to adjudicate that claim, see 45 U.S.C.

§ 56. Second, the-scope-of-LHWCA coverage issue on which we

were focused in Shives is not even likely to be an issue in the

state court on remand because Bynum has already received LHWCA

benefits. The primary question remaining will be whether his

prior receipt of LHWCA benefits bars his FELA claim. Thus, 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.

III.

In sum, we conclude that § 1447(d) bars review of the

district court’s order by appeal or via mandamus. We also

conclude that Norfolk Southern has not established entitlement

to mandamus relief because it has not shown a clear and

indisputable right to such relief. Accordingly, we dismiss

Norfolk Southern’s appeal and deny its mandamus petition.

APPEAL DISMISSED AND
PETITION FOR WRIT OF MANDAMUS DENIED

district court did not need to reach that issue as part of its
removal jurisdiction analysis.” 460 F.3d at 595.

28