### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 E rnewayn sued her employer, Home Depot U.S.A., Inc. (“Home Depot” ) , i n state court, c laiming that Home Depot’s negligence caused her onU n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 14, 2013 Ly l e W . Cay ce Clerk Case: 12-51285 Document: 00512341448 Page: 1 Date Filed: 08/14/2013No. 12-51285

t he-job injury. The district c ourt remanded after Home Depot remove d , a n d Home D epot appeals the remand. Concluding that we are without jurisdiction, we dismiss the appeal.

I. Because Home D e p ot was not a subscriber to the Texas Worker’s Compensation Fund, E rnewayn filed a nonsubscriber action pursuant to T E XA S LA B O R C O D E § 406.033. Home Depot removed to federal court o n the basis of diversity jurisdiction. E rnewayn 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. § 1 4 4 5 ( 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 i t had subject-matt e r j u risdiction b ased o n diversity, the district court considered whether Ernewayn’s suit was removable. The court noted a division among district courts o ver whether claims such as Ernewayn’s “arise under” t h e T W C A , a nd it observed that this court had refused to “comment on w hether the TWCA’s mere ‘contemplat[ion]’ o f a cause of a ction provides sufficient j u s t i f

i cation to deny removal under section 1 445(c).” Am. Int’l Spec i a l t y Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558, 569 (5th Cir. 2010) (alteration in original). Therefore, the c ourt found “ambiguity” a s t o w hether Ernewayn’s suit w as removable. Consistent with the underlying policy of § 1445(c) and with this court’s cano n that “[a]ny ambiguities are construed against removal because the removal s tatute should be strictly c o nstrued in favor of remand,” 1 the district court concluded that the suit was “ n ot removable” and “must be remanded.”

1 M a nguno v
. Prudenti a lProp

. & Ca s. Ins. Co. , 276 F. 3d 720, 723 ( 5th Cir. 2002)

. 2 Case: 12-51285 Document: 00512341448 Page: 2 Date Filed: 08/14/2013No. 12-51285 I I. Ernewayn asks us to dismiss the appeal for want of a ppellate jurisdiction. “We have jurisdiction to d etermine our own jurisdiction.” Martin v. H alliburton , 618 F.3d 476, 481 (5th Cir. 2 010). Home Depot, as appellant, bears the burden of establishing appellate jurisdiction. Id. Congress has restricted our jurisdiction to r eview remand orders; subject to exceptions not relevant here, “[a]n order remanding a case to the State court from which i t was removed is not reviewable o n appeal or otherwise,” 28 U.S.C. § 1447(d). Despite its b road language, “§ 1447(d) m ust be r ead i n pari materia with § 1447(c), so that o nly remands b ased o n grounds specified in § 1 447(c) are immune fro m r e v iew under § 1447(d).” Things Remembered, Inc. v. Petrarca , 516 U.S. 124, 1 27 (1995). Section 1447(c) allows for r emands “based on a timely raised defect in removal p rocedure or on lack of subject-matter jurisdiction.” I d. Because the district court held that it h ad subject-matter jurisdiction, we must dismiss this appeal if, but only if, the court remanded b ased on a timely raised defect in removal procedure.

A. Home Depot contends that § 1445(c) is not s uch a procedural defect. Under this court’s binding precedents, however, “[a] s t atutory restriction a g a i n s t removal like the on e i n § 1 445(c) is a d efect i n removal p rocedure under § 1447(c).” Meeks v. Swift Transp., I n c
. , 3 9 8 F

. App’x 980, 9 82 ( 5th Cir. 2010) (per curiam). Rather than spelunk in our caselaw yet again, we adopt the Meeks panel’s pers u a s i v e, albeit unpublished, rejection of the v ery argument Home Depot makes:

We have consistently held t h a t “‘when section 1447(c) speaks of any defect in removal procedure, it i n c l udes within its reach the bringing of an a ction not within th e court’ s removal jurisdiction but that could have been

3 Case: 12-51285 Document: 00512341448 Page: 3 Date Filed: 08/14/2013No. 12-51285 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, I n c. , 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. A C S

park Plugs Div. of Gen. Motors Corp. , 985 F.2d 783, 786–88 (5th Cir. 1993) (Removal of an action contrary to statutory
r e s tri c ti o n s a g ai n s t r e m ov al—including those p rovi d e d b y § § 1 4 4 5 ( a) and (c)—is a procedural defect subject to the requirem e n t s of § 1447(c)). Thus, based o n this clear case law

. . . and under § 1 447(d) this court h a s no jurisdiction to review the district court’s remand order. Albarado , 1 99 F.3d at 765. See also Certain Underwriters at L loyd’s, London v. W arrantech Corp. , 461 F.3d 56 8 , 572 (5th Cir. 2006). [Arguing against this conclusion, Swift] relies on l anguage in Schexnayder v
. Entergy Louisiana, Inc. , 394 F.3d 280, 283 (5th Cir. 2 0 0 4 ) , that i n turn relies on In re Excel C orp. , 106 F.3d 1197 (5t h Cir. 1997). The language in Schexnayder suggests that a remand b a sed on § 1445(c) is a non § 1447(c) ground for remova l a n d t h u s reviewable on appeal. Schexnayder states:
Non § 1447(c) grounds for which a district court might remand a c ase include those remands made for purely d iscretionary reasons,
. . . abstention-based remands ,

. . . remands based on § 1445(c) , In re Excel Co rp. , 106 F.3d 1197, 1200 (5th C ir. 1997), and r emands based o n 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 r esponded 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 r ead as inconsistent with o ur p rior hold4 Case: 12-51285 Document: 00512341448 Page: 4 Date Filed: 08/14/2013No. 12-51285 ings in J

o hnson , [ 2 ] H

o p kins , a nd Williams , our e arlier decisions control.

. . . Thus, remand b a s ed upon § 1445(a)’s s tatutory res triction against removal is a procedural defect u n d e r § 1447(c), and the district court’s r emand 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 i s whether the district court remanded based on § 1445(c) or,

as Home Depot asserts, on a d i scretionary basis because of an ambiguity. According to Home Depot, the court decl i n e d t o h old that § 1445(c) precluded removal but instead considered two contrary lines of cases and concluded that it is not yet e stablished as to whether a negligence action against a nonsu b s c ribing employer “arises under” the TWCA. Because our sister courts are split on the i ssue a nd this Circuit has not expressly
r u l e d o n the issue, the Court finds that ambiguity exists as t o whether the instant action is in fact removable.
Home Depot reasons that i n light of perceived “ambiguity,” and without relying

on the language of § 1445(c) or any oth e r r e moval statute, the district court decided to remand. H ome Depot labels that “at best, a di s c r etionary remand order without statutory authority” and therefore reviewable. Despite Home Depot’s c reative 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 c ourt’s instruction that ambiguities in removal s tatu t e s s h o u l d be construed against removal, the court c o nstrued § 1445(c) in favor of remand.

2 Johnson v
. O deco O il & G a s Co. , 864 F. 2d 40 ( 5th Cir. 1989)

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We have no authority to review such remand orders, so the a ppeal is DISMISSED for want of jurisdiction. 3

3 H ad w e any d oubt about the court’s bas is for rem and , w e could not review it, becaus e it contains no clear s tatem ent t h a t r e m a n d w as bas ed on a non- § 1447( c) ground

. Certa i n U nderw ri t ers a t Lloyd’s, London , 461 F. 3d at 572 (“O ur inquiry is guid ed by a clear s tatem ent requirem ent: f

or a rem and ord er to be review able on ap p eal, the d is trict court m us t ‘clearly and af f irm atively’ s tate a non- § 1447( c) ground f or rem and

. ”)

. 6 Case: 12-51285 Document: 00512341448 Page: 6 Date Filed: 08/14/2013