In re: CSX Transportation v.

Filed: July 28, 1998

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-2038(L)
(CA-97-1611-S)

In Re: CSX Transportation, Inc.,

Petitioner.

O R D E R

The court amends its opinion filed July 16, 1998, as follows:

On the cover sheet, section 7, lines 1-2 -- the language is

corrected to read: “Judge Niemeyer wrote the opinion, in which

Judge Michael and Judge Friedman joined.”

On page 9, second full paragraph, line 16 -- the phrase

“(Stevens, J., concurring)” is corrected to read “(Blackmun, J.,

concurring.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: CSX TRANSPORTATION,
INCORPORATED, No. 97-2038
Petitioner.

On Petition for Writ of Mandamus.
(CA-97-1611-S)

LARRY W. SHIVES,
Plaintiff-Appellee,

v.
No. 97-2053
CSX TRANSPORTATION,
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-97-1611-S)

Argued: May 6, 1998

Decided: July 16, 1998

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.
COUNSEL

ARGUED: Eric Rawson Harlan, Stephen Bennett Caplis, WHITE-
FORD, TAYLOR & PRESTON, L.L.P., Baltimore, Maryland, for
Appellant. Perry Matthew Darby, ALBERTINI & DARBY, Balti-
more, Maryland, for Appellee. ON BRIEF: Guy M. Albertini, Allan
B. Rabineau, Theresa A. Rosendale, ALBERTINI & DARBY, Balti-
more, Maryland, for Appellee.

_________________________________________________________________

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 Trans-
portation, 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 termi-
nal 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 car-
men's time was spent on non-maritime transfers of freight from trains
to trucks and vice versa.

2
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 Long-
shore 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' adminis-
trative 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 des-
tined 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

3
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 (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 appel-
late 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; see

4
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 fed-
eral case, and therefore is a final order appealable under § 28 U.S.C.
§ 1291. See Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1719
(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). More-
over, its ministerial application of § 1445(a) depended on its substan-
tive 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 prohib-
ited 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 unre-
viewable 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 deci-
sion 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 concep-
tual 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.

5
1996). In Mangold, we held that if, after examining the district court's
reasoning for remand, we determined that the order did not fall pre-
cisely 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 cover-
age issues is one of those extraordinary situations envisioned in
Thermtron for exercise of the writ. We held analogously in Mangold
that "to fragment a claim between state and federal courts [was]
fraught with mischief and capable of producing unnecessary tensions
between the two systems" and that therefore we were justified in
treating an appeal as a petition for a writ of mandamus. Id.

Accordingly, while we exercise appellate jurisdiction with some
delicacy, we also recognize our review authority on the employer's
petition for a writ of mandamus. See Jamison, 14 F.3d at 233-34. We
now turn to the coverage question.

III

To be covered by the LHWCA, a work-related injury must have
occurred on "navigable waters," as defined by 33 U.S.C. § 903(a), and
the employee must have been engaged in "maritime employment," as
defined by 33 U.S.C. § 902(3). The parties agree that Shives' injury
occurred on navigable waters because it occurred while Shives was
working at a terminal adjoining navigable waters. See 33 U.S.C.
§ 903(a) (defining "navigable waters" to include adjoining terminal
areas). The sole issue therefore is whether Shives was "engaged in
maritime employment" as defined by 33 U.S.C.§ 902(3) when he
sustained his injury. While Shives acknowledges that 15% of his job
entailed the loading and unloading of maritime freight, he contends
that because, at the time of his injury, he was unloading freight from
a train onto trucks, not ships, he was not covered by the LHWCA and
therefore was entitled to pursue his FELA claim for negligence. His
interest in an FELA claim stems from his belief that a recovery under

6
the FELA will be more remunerative than an award for workers com-
pensation under the LHWCA.

CSXT concedes that at the time of Shives' injury, the loading
activity was not of maritime freight nor in connection with a ship. It
argues, however, that "the work which [Shives] was performing at the
time of injury is of no legal import." It maintains that maritime
employment is occupational, defined by whether the employee spends
some portion of his overall work engaged in maritime employment.
Because Shives' work concededly involved 15% maritime employ-
ment, CSXT argues, he was covered by the LHWCA.

The issue thus reduces to a two-part question: whether an employee
who engages in maritime activities only 15% of the time is "engaged
in maritime employment" as defined by the LHWCA and whether it
matters that at the time of his injury he was performing a non-
maritime duty.

Prior to 1972, the LHWCA applied only to injuries occurring on
navigable water, and the line demarcating land and water also defined
the line between coverage of the LHWCA and coverage of state
workers' compensation laws. See generally Jonathan Corp. v.
Brickhouse, 142 F.3d 217 (4th Cir. 1998). "As a consequence, Long-
shoremen continually walked in and out of LHWCA coverage as they
walked up and down the gangplank from ship to shore during the
loading and unloading of vessels." Id. at *2 (quoting Sidwell v.
Express Container Servs., Inc., 71 F.3d 1134, 1135 (4th Cir. 1995)).
To provide more uniform coverage for longshoremen as they loaded
and unloaded ships and to provide federal coverage for all workers
who loaded ships, whether they were on the water or the adjacent
land, Congress amended the LHWCA to extend coverage to the area
adjacent to the ship that is normally used for loading and unloading.
In addition, because of this expanded geographical coverage, it
restricted the coverage to maritime employment. Thus, while cover-
age before 1972 was based solely on a situs test delineated by the
shoreline, coverage after the 1972 amendments was based on meeting
a two-part situs and status requirement. See P.C. Pfeiffer Co. v. Ford,
444 U.S. 69, 73 (1979).

To satisfy the situs test adopted in 1972, an injury must occur on
"navigable waters" defined to include "any adjoining pier, wharf, dry

7
dock, terminal, building way, marine railway, or other adjoining area
customarily used by an employer in loading, unloading, repairing, dis-
mantling, or building a vessel." 33 U.S.C. § 903(a). And to satisfy the
status test, the employee must be engaged in "maritime employment,"
defined to include "any longshoreman or other person engaged in
longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker." 33 U.S.C. § 902(3).

While the new situs test mitigated the "walking in and out of cover-
age" problem by moving the line inland in order to cover workers
loading and unloading ships both from on the water and from on the
land, a worker could still walk into and out of a LHWCA situs
because the line remained geographical. See Jonathan, 142 F.3d at
220. The status test, however, is occupational, intending to provide
employees continuous coverage throughout their employment at a
maritime situs regardless of the particular activity at the time of
injury. As the Supreme Court stated in Northeast Marine Terminal
Co. v. Caputo, 432 U.S. 249 (1977):

The Act focuses primarily on occupations-- longshoreman,
harbor worker, ship repairman, shipbuilder, shipbreaker.
Both the text and the history demonstrate a desire to provide
continuous coverage throughout their employment to these
amphibious workers who, without the 1972 amendments,
would be covered only for part of their activity. It seems
clear, therefore, that when Congress said it wanted to cover
"longshoremen," it had in mind persons whose employment
is such that they spend at least some of their time in indispu-
tably longshoring operations and who, without the 1972
amendments, would be covered for only part of their activ-
ity.

Id. at 273 (emphasis added). Confirming later the occupational char-
acteristic of this status test, the Court observed, "the `maritime
employment' requirement is `an occupational test that focuses on
loading and unloading.'" Herb's Welding, Inc. v. Gray, 470 U.S. 414,
423-24 (1985) (quoting Pfeiffer, 444 U.S. at 80). And in determining
occupation, "the crucial factor is the nature of the activity to which
a worker may be assigned." Pfeiffer , 444 U.S. at 82 (emphasis added).
Finally, the Supreme Court has instructed that any coverage determi-

8
nation be informed by "an expansive view of the extended coverage."
Caputo, 432 U.S. at 268. It said, "The Act `must be liberally con-
strued in conformance with its purpose, and in a way which avoids
harsh and incongruous results.'" Id.

In short, the status inquiry focuses on the assigned occupational
duties of the employee, and coverage is not denied simply because the
employee was not performing a maritime function at the time of his
injury. To determine whether the employee is engaged in maritime
employment, we inquire whether the employee's assigned job
requires his spending some of his time in indisputably longshoring
operations.

This construction of the status requirement is consistent with Con-
gress' intent to fill the gap that existed before the 1972 amendments
when longshoremen could walk in and out of coverage as they walked
up and down the gangplank. In combination with the situs require-
ment, the status requirement thus provides LHWCA benefits more
seamlessly to all those who perform some longshoring operations.
Indeed, it is instructive to recognize that an employer covered by the
LHWCA is defined as one whose "employees are employed in mari-
time employment, in whole or in part, upon the navigable waters of
the United States [as defined by the Act]." 33 U.S.C. § 902(4)
(emphasis added). Were we to adopt a more restrictive interpretation
that maritime employment refers only to the particular activities of the
longshoreman being performed at the specific moment of injury, we
would "bring the `walking in and out of coverage' problem back with
a vengeance." Chesapeake and Ohio Ry. Co. v. Schwalb, 493 U.S. 40,
50 (1989) (Blackmun, J., concurring); see also Caputo, 432 U.S. at 274.

Our test requiring the examination of an employee's assigned
duties to determine whether some of them include longshoring opera-
tions is similar to that adopted in other circuits. In Boudloche v. How-
ard Trucking Co., Inc., 632 F.2d 1346 (5th Cir. 1980), the Fifth
Circuit held that an employee who spent only 2-1/2 to 5% of his over-
all working time performing longshore work was nevertheless
engaged in maritime employment since he spent "at least some of
[his] time in undisputedly longshoring operations." Id. at 1347 (quot-
ing Caputo, 432 U.S. at 273). The court observed

9
 Boudloche was directed to regularly perform some portion
of what was undisputedly longshoring work at fully
equipped docks and, for at least some part of his work, was
required to perform the total maritime job at unequipped
docks. The fact that his employer also assigned him broader
duties as a truck driver cannot override its choice to make
Boudloche a maritime employee under the Act.

Id. at 1348; see also Howard v. Rebel Well Serv., 632 F.2d 1348 (5th
Cir. 1980) (a sandblaster who spent 10% of his time sandblasting
maritime equipment was engaged in maritime employment). The
Fifth Circuit subsequently summarized its rule, stating, "a claimant
will meet the status requirement of the Act, not only if he is engaged
in `maritime employment' at the time of injury, but also if he spends
some portion of his overall employment engaged in maritime activi-
ties." Hullinghorst Indus., Inc. v. Carroll , 650 F.2d 750, 754 (5th Cir.
Unit A, July 1981). See also Garvey Grain Co. v. Director, OWCP,
639 F.2d 366, 371 (7th Cir. 1981) (noting that "[t]he `moment of
injury' test is no longer the test to determine the status of an employee
under the Act" and that coverage may be found where an employee
"spends at least some of his time in indisputedly longshore opera-
tions"); Sea-Land Servs., Inc. v. Director, OWCP, 685 F.2d 1121,
1123 (9th Cir. 1982) (same).

Seagirt Marine Terminal is an intermodal maritime situs where
freight is transferred from train to ship, from train to truck, from truck
to ship, and from truck to train. When CSXT assigned its employees
the carmen's duties of loading and unloading its train cars at the ter-
minal, it expected that the carmen would unload all of its freight,
whether that freight was destined for truck or for ship. Likewise, it
expected the carmen would load its trains with freight that arrived at
the terminal, whether that freight arrived by truck or by ship. Because
its carmen's duties consisted of loading and unloading at a marine ter-
minal and some of the loading and unloading involved ships, the car-
men by occupation were engaged in maritime employment. The
fortuity that some freight at the terminal would bypass ships does not
deny the carmen's employment a maritime characteristic. Moreover,
as we have noted, even if the employee's particular function at the
time of his injury was not maritime, he is not denied coverage based
on a lack of maritime status. Because maritime status is an occupa-

10
tional inquiry, we determine only whether some of the employees'
work was indisputedly maritime in nature.

Shives, hoping that the LHWCA does not cover him because of his
expectation of realizing a more beneficial recovery through his FELA
claim, argues that because only 15% of his duties involved the load-
ing and unloading of maritime freight, he was not engaged in mari-
time employment. This argument, suggesting that maritime
employment is determined by some defined percentage of an employ-
ee's work, however, is not useful and misdirects the inquiry. Congress
wanted the LHWCA to cover longshoremen loading and unloading
ships, whether they are on the ship or at the adjacent terminal, and the
Supreme Court has clearly held that to give effect to this intent, the
employee does not move in and out of maritime employment status
for purposes of coverage under the Act. Shives was assigned maritime
work as needed at the marine terminal, and this longshore work was
not merely "momentary or episodic." Boudloche, 632 F.2d at 1348.
It was an assigned portion of his duties necessary in order for CSXT
to function at the terminal efficiently.

Undoubtedly, there is a level of longshore work assigned to an
employee that may be so de minimis as to defeat coverage. We need
not, in this case, determine that level because we conclude that Shives
was clearly assigned to do some indisputably longshore work when
he was assigned, as part of his job, to load and unload maritime
freight at the Seagirt Marine Terminal.

The district court relied on our decision in Hayes v. CSX Transp.,
Inc., 985 F.2d 137 (4th Cir. 1993), in ruling that Shives was not
engaged in maritime employment "as of the time of his injury." It
noted that Hayes inquired whether the employee "was engaged in
maritime employment at the time of his injury," id. at 140 (emphasis
added), and reasoned that "none of the containers or other freight car-
ried by the incoming train on which Mr. Shives was working at the
time of his accident was destined for transport by a maritime vessel."
While the status test properly inquires whether the employee was
engaged in maritime employment at the time of his injury, this does
not mean that his particular duties at the time of injury needed to be
maritime in nature. Rather, the status test turns on whether the
employee's occupation at the time of injury was maritime. By its

11
nature, therefore, a status test considers the employee's occupation as
a whole, not the nature of the particular job function being performed
at the time of injury. Indeed, this is how we understood the test in
Hayes because we acknowledged that "the origins or destination of
the loads being worked at the time [of Hayes' injury] are unknown."
985 F.2d at 139.

In summary, we hold that because, at the time of injury, Shives was
performing his assigned work as a carman at the Seagirt Marine Ter-
minal and because some of his carman's duties were indisputably
maritime, Shives was engaged in maritime employment as defined by
the LHWCA. Because Shives met both the situs and the status tests
of the LHWCA, he was covered by the Act.

This LHWCA coverage is exclusive and preempts Shives from
pursuing an FELA claim. See 33 U.S.C. § 905(a); Etheridge v. Nor-
folk & W. Ry. Co., 9 F.3d 1087, 1091 (4th Cir. 1993).

IV

Having concluded that Shives only has an LHWCA claim, and not
an FELA claim, we are left with a procedural conundrum. Section
1441 of Title 28 authorizes removal of civil actions "of which the dis-
trict courts have original jurisdiction." 28 U.S.C. § 1441(b); see also
§ 1441(a). While Shives' LHWCA claim arises under the laws of the
United States, see 28 U.S.C. § 1331, it is not an action over which the
district courts have original jurisdiction. An LHWCA claim must be
filed with the Department of Labor where it is assigned to an adminis-
trative law judge whose decision is reviewed by the Benefits Review
Board. 33 U.S.C. §§ 910(a), 921(b). Review by the courts is autho-
rized through a petition for review, which may be filed only in the
courts of appeals, not in the district court. 33 U.S.C. § 921(c).

Thus, not only was Shives' claim not removable as an FELA case,
see 28 U.S.C. § 1445(a), it was also not removable under 28 U.S.C.
§ 1441(b). But the remedy for the improper removal in this case does
not appear to be a remand to state court as ordered by the district
court, which acted on its finding that this is an FELA case. State
courts have jurisdiction over FELA cases, but they do not have juris-
diction over LHWCA cases.

12
While state court jurisdiction is not ordinarily a prerequisite for
removability, see 28 U.S.C. § 1441(e), jurisdiction in the district court
is, see 28 U.S.C. § 1441(a) & (b). Thus, we are faced with an
LHWCA case over which neither the state court nor the district court
had jurisdiction because such a claim could only be filed in the first
instance with the Secretary of Labor.

While the only intuitive remedy might nevertheless be to remand
this case to the state court to decide the coverage question, if we were
to do so, we would be committing the federal question of LHWCA
coverage to the state court when Congress intended that it be decided
exclusively in federal court. In the peculiarities of this case, we
believe that the district court should not have remanded the case to
state court, but should have dismissed it. Accordingly, we vacate the
district court's remand order and remand this case to the district court
with instructions to dismiss the case for lack of subject matter juris-
diction. In this way, Shives will be able to proceed through the admin-
istrative process before the Department of Labor with his protectively
filed LHWCA claim.

IT IS SO ORDERED

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