IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51285

Summary Calendar

MARY A. ERNEWAYN,

Plaintiff–Appellee,

versus

HOME DEPOT U.S.A., INC.,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before SMITH, PRADO, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mary Ernewayn sued her employer, Home Depot U.S.A., Inc. (“Home

Depot”), in state court, claiming that Home Depot’s negligence caused her onUnited States Court of Appeals

Fifth Circuit

F I L E D

August 14, 2013

Lyle W. Cayce

Clerk

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No. 12-51285

the-job injury. The district court remanded after Home Depot removed, and

Home Depot appeals the remand. Concluding that we are without jurisdiction,

we dismiss the appeal.

I.

Because Home Depot was not a subscriber to the Texas Worker’s Compensation Fund, Ernewayn filed a nonsubscriber action pursuant to TEXAS LABOR

CODE § 406.033. Home Depot removed to federal court on the basis of diversity

jurisdiction. Ernewayn moved to remand, contending, as relevant here, that the

suit arose under the Texas Worker’s Compensation Act (“TWCA”) and therefore

was not removable under 28 U.S.C. § 1445(c). Home Depot protested that the

suit does not “aris[e] under the workmen’s compensation laws” of Texas and is

therefore removable.

After concluding that it had subject-matter jurisdiction based on diversity,

the district court considered whether Ernewayn’s suit was removable. The court

noted a division among district courts over whether claims such as Ernewayn’s

“arise under” the TWCA, and it observed that this court had refused to “comment on whether the TWCA’s mere ‘contemplat[ion]’ of a cause of action provides

sufficient justification to deny removal under section 1445(c).” Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 569 (5th Cir. 2010)

(alteration in original). Therefore, the court found “ambiguity” as to whether

Ernewayn’s suit was removable. Consistent with the underlying policy of

§ 1445(c) and with this court’s canon that “[a]ny ambiguities are construed

against removal because the removal statute should be strictly construed in

favor of remand,”1

the district court concluded that the suit was “not removable”

and “must be remanded.”

1 Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

2

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II.

Ernewayn asks us to dismiss the appeal for want of appellate jurisdiction.

“We have jurisdiction to determine our own jurisdiction.” Martin v. Halliburton,

618 F.3d 476, 481 (5th Cir. 2010). Home Depot, as appellant, bears the burden

of establishing appellate jurisdiction. Id.

Congress has restricted our jurisdiction to review remand orders; subject

to exceptions not relevant here, “[a]n 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). Despite its broad language, “§ 1447(d) must be read in pari materia

with § 1447(c), so that only remands based on grounds specified in § 1447(c) are

immune from review under § 1447(d).” Things Remembered, Inc. v. Petrarca,

516 U.S. 124, 127 (1995). Section 1447(c) allows for remands “based on a timely

raised defect in removal procedure or on lack of subject-matter jurisdiction.” Id.

Because the district court held that it had subject-matter jurisdiction, we must

dismiss this appeal if, but only if, the court remanded based on a timely raised

defect in removal procedure. 

A.

Home Depot contends that § 1445(c) is not such a procedural defect. Under

this court’s binding precedents, however, “[a] statutory restriction against

removal like the one in § 1445(c) is a defect in removal procedure under

§ 1447(c).” Meeks v. Swift Transp., Inc., 398 F. App’x 980, 982 (5th Cir. 2010)

(per curiam). Rather than spelunk in our caselaw yet again, we adopt the Meeks

panel’s persuasive, albeit unpublished, rejection of the very argument Home

Depot makes:

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

3

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brought originally in that court.’” Hopkins [v. Dolphin

Titan Intern., Inc.], 976 F.2d [924] at 926 [(5th Cir.

1992)] (quoting Baris v. Sulpicio Lines, Inc., 932 F.2d

1540, 1544–45 (5th Cir. 1991) (internal quotations

omitted)).

Albarado v. S. Pac. Transp. Co., 199 F.3d 762, 765 (5th Cir. 1999);

Williams v. AC Spark Plugs Div. of Gen. Motors Corp., 985 F.2d 783,

786–88 (5th Cir. 1993) (Removal of an action contrary to statutory

restrictions against removal—including those provided by §§ 1445(a)

and (c)—is a procedural defect subject to the requirements of

§ 1447(c)). Thus, based on this clear case law . . . and under

§ 1447(d) this court has no jurisdiction to review the district court’s

remand order. Albarado, 199 F.3d at 765. See also Certain Underwriters at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568, 572

(5th Cir. 2006).

[Arguing against this conclusion, Swift] relies on language in

Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280, 283 (5th Cir.

2004), that in turn relies on In re Excel Corp., 106 F.3d 1197 (5th

Cir. 1997). The language in Schexnayder suggests that a remand

based on § 1445(c) is a non § 1447(c) ground for removal and thus

reviewable on appeal. Schexnayder states:

Non § 1447(c) grounds for which a district court might

remand a case include those remands made for purely

discretionary reasons, . . . abstention-based remands,

. . . remands based on § 1445(c), In re Excel Corp., 106

F.3d 1197, 1200 (5th Cir. 1997), and remands based on

the district court’s discretionary powers under § 1441(c)

. . . among others.

394 F.3d at 283 (emphases added; [internal citations omitted]). In

Albarado, however, this court responded to a similar argument by

stating expressly that In re Excel should not be relied on in resolving this issue.

Thus, to the extent that our implicit holding in In re

Excel can be read as inconsistent with our prior hold4

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ings in Johnson,

[2] Hopkins, and Williams, our earlier

decisions control. . . . 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. 

Albarado, 199 F.3d at 766.

Id. (alterations to first paragraph in original). 

B.

The question is whether the district court remanded based on § 1445(c) or,

as Home Depot asserts, on a discretionary basis because of an ambiguity.

According to Home Depot, the court declined to hold that § 1445(c) precluded

removal but instead considered two contrary lines of cases and concluded that

it is not yet established as to whether a negligence action against a

nonsubscribing employer “arises under” the TWCA. Because our

sister courts are split on the issue and this Circuit has not expressly

ruled on the issue, the Court finds that ambiguity exists as to

whether the instant action is in fact removable.

Home Depot reasons that in light of perceived “ambiguity,” and without relying

on the language of § 1445(c) or any other removal statute, the district court

decided to remand. Home Depot labels that “at best, a discretionary remand

order without statutory authority” and therefore reviewable.

Despite Home Depot’s creative parsing, the remand was based on

§ 1445(c). The only ambiguity the court found was in whether that section precludes removal of suits like Ernewayn’s. Because of the policy underlying

§ 1445(c) and this court’s instruction that ambiguities in removal statutes should

be construed against removal, the court construed § 1445(c) in favor of remand. 

2 Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (5th Cir. 1989).

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We have no authority to review such remand orders, so the appeal is

DISMISSED for want of jurisdiction.3

3 Had we any doubt about the court’s basis for remand, we could not review it, because

it contains no clear statement that remand was based on a non-§ 1447(c) ground. Certain

Underwriters at Lloyd’s, London, 461 F.3d at 572 (“Our inquiry is guided by a clear statement

requirement: for a remand order to be reviewable on appeal, the district court must ‘clearly

and affirmatively’ state a non-§ 1447(c) ground for remand.”).

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