UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30951
THOMAS ALBARADO; LARRY P. BARRILLEAUX; A. G. BRADLEY;
LEONARD C. GETTRIDGE; LESTER A. THOMAS; BRYAN L.
MAYEAUX, JR.; FRED C. PERAULT; DAVID B. SHILL, III;
WALTER J. FARRELL, III; ROBERT M. BELL, III;
EARNEST THIBODEAUX,
Plaintiffs - Appellees,
VERSUS
SOUTHERN PACIFIC TRANSPORTATION COMPANY; ET AL.,
Defendants,
UNION PACIFIC RAILROAD COMPANY, A Delaware Corporation,
Previously known as Southern Pacific Railroad Company,
in its corporate capacity and as successor by merger
to both Union Pacific Railroad Company, a Utah Corporation,
and Missouri Pacific Railroad, a Delaware Corporation,
formerly known as Southern Pacific Transportation
Company; THE KANSAS CITY SOUTHERN RAILWAY COMPANY,
INC.; ILLINOIS CENTRAL RAILROAD CO., INC.; CSX
TRANSPORTATION, INC.; THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY; THE ALABAMA GREAT
SOUTHERN RAILROAD COMPANY; NORFOLK SOUTHERN
RAILWAY COMPANY, INC.,
Defendants - Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
December 29, 1999
Before JONES, DeMOSS, and DENNIS, Circuit Judges.
HAROLD R. DeMOSS, Circuit Judge:
The defendants-appellants Union Pacific Railroad Company, et
al. (collectively the “Rail Carriers”) appeal the district court's
order remanding this case to the state court from which it was
removed. For the reasons discussed below, we conclude that we are
without jurisdiction and therefore dismiss the appeal.1
I. BACKGROUND
The plaintiffs are all employees of the defendant Rail
Carriers. They originally filed this action on January 28, 1998 in
the Orleans Parish Civil District Court, seeking relief and basing
jurisdiction upon the Federal Employers' Liability Act (“FELA”), 45
U.S.C. § 51, et seq. The employees claim that they have suffered,
and are suffering injuries as a result of their contact with
injurious chemical substances during the course of their
employment.
On March 6, 1998, the Rail Carriers removed the action to the
United States District Court for the Eastern District of Louisiana,
alleging that the plaintiffs’ state court petition was crafted to
avoid removal. Specifically, the Rail Carriers allege that non-
diverse parties were fraudulently joined and that plaintiffs were
asserting additional claims within their FELA claim, each with an
independent basis for federal question jurisdiction.2
1
On September 22, 1998, the plaintiffs filed a motion for
per curiam dismissal of the Rail Carriers' unauthorized appeal, or
in the alternative, for summary affirmance of the district court's
remand order. On December 10, 1998, a separate panel of this Court
ordered that the plaintiffs' motion be carried with the case. Our
decision on the merits today grants the plaintiffs' motion to
dismiss.
2
In their complaint, the plaintiffs reference the Rail
Carriers' alleged violations of the Federal Railroad Safety Act
(“FRSA”), 49 U.S.C. § 20101, et seq., and the Occupational Safety
and Health Act (“OSHA”), 29 U.S.C. § 651, et seq. The Rail
Carriers contend that the plaintiffs’ complaint actually arises
under the Interstate Commerce Commission Termination Act (“ICCTA”),
2
On April 6, 1998, the plaintiffs filed a motion to remand the
case back to the state court, arguing that their claim for relief
was based solely upon FELA, and that any and all references to FRSA
and OSHA were included, not as independent bases for recovery, but
in order to establish one of the necessary prerequisite elements of
their prima facie case under FELA, specifically, that the Rail
Carriers' actions were negligent.
On July 30, 1998, the district court entered its order
granting the plaintiffs' motion to remand, stating therein that the
plaintiffs had “raised nonremovable claims under FELA based on
certain illustrated violations of the obligations imposed on the
rail carriers under OSHA and FRSA.” On August 19, 1998, unsure by
which means to obtain appellate review of the district court's
remand order, the Rail Carriers filed a petition for writ of
mandamus in our Court which petition included a request that in the
event a direct appeal, as opposed to mandamus, were the appropriate
mechanism for obtaining review, that we treat the petition for
mandamus as a notice of appeal. On August 27, 1998, a panel of
this Court denied the petition for writ of mandamus, and on the
next day, the Rail Carriers filed their notice of the present
appeal.
II. DISCUSSION
Our first task is to determine whether we have jurisdiction to
consider this appeal. Generally speaking, an order of a district
court remanding a case to the state court is not subject to review
49 U.S.C. § 10101 et seq.
3
on appeal or otherwise. Specifically, 28 U.S.C. § 1447(d) provides
in pertinent part:
An order remanding a case to the State court
from which it was removed is not reviewable on
appeal or otherwise . . . .
28 U.S.C. § 1447(d). In Thermtron Prods., Inc. v. Hermansdorfer,
96 S. Ct. 584 (1976), the Supreme Court limited the applicability
of § 1447(d) to those remand orders which are based upon § 1447(c),
which section provides in pertinent part:
A motion to remand the 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). 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).
Accordingly, we have construed the § 1447(d) prohibition
against appellate review of remand orders as being limited to those
situations where the district court's remand order is grounded upon
either subject matter jurisdiction or a timely filed § 1447(c)
motion asserting a defect in removal. See Hopkins v. Dolphin Titan
Int'l, 976 F.2d 924, 926 (5th Cir. 1992) (citing In re Medscope
Marine Ltd., 972 F.2d 107, 110 (5th Cir. 1992)). In this case, we
do not question the district court’s subject matter jurisdiction,
thus if the plaintiffs' motion to remand was based upon a defect in
removal procedure and was timely filed3, we are without appellate
3
That the motion to remand was timely filed is not in
dispute. The Rail Carriers' notice of removal was filed on March
6, 1998, and the plaintiffs' motion to remand was filed on April 6,
1998. Though 31 calendar days elapsed before the motion to remand
4
jurisdiction to consider the Rail Carriers' present appeal from the
district court's remand order.
In this case, the Rail Carriers removed the case claiming that
the plaintiffs' references to OSHA and FRSA in their complaint were
in fact separate causes of action, each with its own independent
basis for federal jurisdiction, and thus, under § 1441(c),4 the
entire case was removable notwithstanding the non-removability5 of
the FELA claim. The plaintiffs' motion to remand asserted that
their complaint was based solely on their FELA claim, and thus,
pursuant to the non-removability provision of § 1445(a), the
district court lacked removal jurisdiction.
The Rail Carriers also argued that the plaintiffs had
fraudulently joined non-diverse parties in an effort to avoid
was filed, the thirtieth day following March 6, 1998 fell on
Sunday, April 5, 1998, and thus, the motion for remand, having been
filed on the next non-holiday weekday was timely. See FED. R. CIV.
P. 6.
4
Section 1441(c), upon which the Rail Carriers rely,
provides:
Whenever a separate and independent claim or cause of
action within the jurisdiction conferred by section 1331
of this title is joined with one or more otherwise
non-removable claims or causes of action, the entire case
may be removed and the district court may determine all
issues therein, or, in its discretion, may remand all
matters in which State law predominates.
5
Section 1445(a), which specifically deals with FELA claims,
provides:
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.
5
removal, and that as a result, diversity jurisdiction supported
removal. The Rail Carriers contend that, because the district
court had to evaluate whether the plaintiffs' FRSA and OSHA
references actually constituted separate claims, and because it had
to evaluate whether there was fraudulent joinder, the remand order
was based, not upon a § 1447(c) procedural defect, but upon a
review of the merits.
We have consistently held that “`when section 1447(c) speaks
of any defect in removal procedure, it includes within its reach
the bringing of an action not within the court's removal
jurisdiction but that could have been brought originally in that
court.’” Hopkins, 976 F.2d at 926 (quoting Baris v. Sulpicio Lines,
Inc., 932 F.2d 1540, 1544-45 (5th Cir. 1991) (internal quotations
omitted)). With respect to claims brought pursuant to FELA,
federal courts have concurrent original subject matter
jurisdiction, but not removal jurisdiction. See 45 U.S.C. § 56; 28
U.S.C. § 1445(a). Thus a FELA claim, if filed originally in state
court, may not be removed unless it is joined with separate and
independent claims over which the federal courts exercise exclusive
jurisdiction. See 28 U.S.C. § 1441(c). Here, the district court
concluded that the references to FRSA and OSHA were not
sufficiently separate or independent such that removal jurisdiction
under § 1441(c) could be invoked, and that there was no evidence to
suggest that the plaintiffs had joined the non-diverse rail carrier
employers in a fraudulent manner. The district court therefore,
relying on § 1445(a), concluded that it was without removal
6
jurisdiction and granted the plaintiffs' motion to remand.
We have also consistently held that though § 1445(a) is not
jurisdictional, if a defendant removes an action arising under an
act covered by § 1445(a), then wrongful removal is a procedural
defect, which may be waived if not timely asserted in a motion
filed under § 1447(c) within 30 days of removal. See In re Excel
Corp, 106 F.3d 1197, 1201 n.4 (5th Cir.), cert. denied, 118 S. Ct.
159 (1998); Johnson v. Odeco Oil and Gas Co., 864 F.2d 40, 42 (5th
Cir. 1989) (stating that under certain circumstances, even after
wrongful removal, a plaintiff in a Jones Act case covered by
section 1445(a), may lose his “statutory right to object to the
exercise of subject matter jurisdiction by the . . . district
court.”).
The Rail Carriers have placed great emphasis on our decision
in In re Excel. They argue we held in that case that we have
jurisdiction to review a remand order notwithstanding the
provisions of § 1447(d), because a remand based upon the non-
removability provisions of § 1445(c) for worker's compensation
claims, which provisions are nearly identical in substance to the
non-removability provisions of § 1445(a) for FELA claims, is not
based upon a defect in removal procedure. The Rail Carriers rely
on the following passage from In re Excel:
The district court determined that this case
involves a worker's compensation remand order
based on 28 U.S.C. § 1445(c) ("A civil action
in any State court arising under the workmen's
compensation laws of such State may not be
removed to any district court of the United
States."). Because we are reviewing a remand
order which is not grounded on subject matter
7
jurisdiction or on defects in removal
procedure under 28 U.S.C. § 1447(c), we have
jurisdiction to consider the propriety of such
order.
In re Excel, 106 F.3d at 1200.
The issue in In re Excel was not whether the district court
properly ordered remand on the merits, but rather the issue was
whether by consolidating eight cases together and then ordering
remand without regard to the facts and circumstances of each of the
cases individually, the district court utilized an improvident
procedure in evaluating the propriety of remand. We granted the
extraordinary remedy of writ of mandamus in In re Excel, not to
review the district court's decision to remand under § 1445(c) on
its merits, but rather to require the district court to consider
the propriety of remand as to each individual case. Indeed, in In
re Excel we explicitly expressed our concern that “the district
court adversely affected the rights of the defendants by failing to
separately determine the jurisdictional premise upon which each
stands and the propriety of removal or remand resulting therefrom.”
In re Excel, 106 F.3d at 1201. As we stated in In re Excel, the
writ of mandamus may be used “‘to remedy a clear usurpation of
power or abuse of discretion.’” Id. (quoting In re F.D.I.C., 58
F.3d 1055, 1060 (5th Cir. 1995)). And the facts of In re Excel
convinced us that the district court had abused its discretion in
consolidating the cases and considering remand as if the eight
cases were one cause. See id. That was the sole reason we granted
review in In re Excel, not as the Rail Carriers suggest, because a
remand order based on the analogous provisions of § 1445(c) was
8
neither jurisdictional nor based on a defect in removal procedure.
Additionally, our decision in In re Excel was decided after
our holding in Williams v. AC Spark Plugs Division of Gen. Motors
Corp., 985 F.2d 783 (5th Cir. 1993), wherein we held that a
statutory restriction against removal, i.e., 28 U.S.C. §§ 1445(a)
and (c) or 28 U.S.C. § 1441(b), is a procedural defect. See id. at
786. Thus, to the extent that our implicit holding in In re Excel
can be read as inconsistent with our prior holdings in Johnson,
Hopkins, and Williams, our earlier decisions control. See Walton
v. Bisco Indus., 119 F.3d 368, 371 n.4 (5th Cir. 1997). Thus,
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,
and the Rail Carriers' reliance on In re Excel is misplaced.
As noted above, Thermtron and our own precedent prohibit us
from reviewing a remand order entered pursuant to § 1447(c) whether
erroneous or not’". Hopkins, 976 F.2d at 926 (quoting Thermtron,
96 S. Ct. at 589)). Since in this case, the district court's
remand order was entered based upon a timely filed motion for
remand asserting a lack of removal jurisdiction as a procedural
defect under § 1447(c), we have no jurisdiction to consider this
appeal further.
III. CONCLUSION
Having concluded that we lack appellate jurisdiction to
consider this appeal, the plaintiffs' motion to dismiss the Rail
Carriers' unauthorized appeal, which motion has been carried with
9
the case is GRANTED, and this appeal is DISMISSED for lack of
appellate jurisdiction.
10