United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2210

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In re: Norfolk Southern Railway

Company,

Petitioner.

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No. 09-2333

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David Demay,

Appellee,

v.

Norfolk Southern Railway

Company,

Appellant.

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Appeals from the United States

District Court for the

Eastern District of Missouri.

 [PUBLISHED]

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Submitted: September 21, 2009

 Filed: January 27, 2010

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Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges. 

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HANSEN, Circuit Judge.
1

The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

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David Demay, an employee of the Norfolk Southern Railway Company

(Norfolk Southern), was injured while working in Norfolk, Virginia, at the Lamberts

Point Coal Terminal (Lamberts Point). A Missouri resident, Demay filed a lawsuit

against Norfolk Southern in Missouri state court under the Federal Employers’

Liability Act (FELA), 45 U.S.C. §§ 51 to 60. Norfolk Southern removed the lawsuit

to the United States District Court for the Eastern District of Missouri, claiming the

action was governed by the Longshore and Harbor Workers' Compensation Act

(Longshore Act), 33 U.S.C. §§ 901 to 950. The district court1

 determined that the

action was appropriately brought under the FELA and remanded the case back to state

court. Norfolk Southern appeals. For the following reasons, we affirm.

I.

Lamberts Point is a coal-loading facility that Norfolk Southern uses to load coal

into oceangoing vessels. Lamberts Point is divided into four areas: the CT Yard, the

Barney Yard, Pier 6, and the empty yard. Arriving loaded coal cars are stored in the

CT Yard. The loaded cars are then brought into the Barney Yard and secured by

setting their manual brakes. Once there, they are released one by one and roll down

an incline onto one of two rotary dumpers. The dumpers rotate the cars and dump the

coal onto conveyors, which move the coal to Pier 6 to be deposited into the holds of

oceangoing colliers. Once the cars are unloaded, they are moved to the empty yard

to return to the coal mines for refilling.

Demay, a railroad switchman/conductor employed by Norfolk Southern, lives

in Huntsville, Missouri. On October 22, 2008, he was temporarily working at

Lamberts Point when he was injured. Demay's crew's job was to place (i.e., "spot")

the rail cars in the Barney Yard and set their handbrakes to keep them in place. Other
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workers later would release the cars, sending them down the incline to the rotary

dumpers. At the time of the injury, his crew was spotting rail cars loaded with coal

in the Barney Yard. Demay climbed onto the lead loaded car and directed the

movement of the string of loaded cars into the Barney Yard while communicating by

radio with the locomotive engineer at the other end of the moving cars. When the cars

were in their proper place, Demay told the engineer to stop the train. While climbing

down off the car, Demay fell and landed on the track, breaking several ribs.

Demay filed a lawsuit in the Circuit Court of St. Louis County, Missouri, to

recover for his injuries under the FELA. A case filed in state court under the FELA

may not be removed to federal court by the defendant. See 28 U.S.C. § 1445(a) ("A

civil action in any State court against a railroad . . . arising under [45 U.S.C. §§ 51 to

60] may not be removed to any district court of the United States."). However,

Norfolk Southern removed Demay's suit to federal court, claiming that Demay's

claims are controlled exclusively by the Longshore Act because Demay was engaged

in maritime employment at the time of his injury. To be covered by the Longshore

Act, an employee must be injured while working: (1) at a maritime situs; and (2) in

a maritime status. Ne. Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 265

(1977). Both parties agree that Demay was working at a maritime situs. The district

court held that Demay was not working in a maritime status, and it found that his

injury was covered by the FELA, not the Longshore Act, and it therefore lacked

removal jurisdiction to review the claim. The district court thus remanded the case to

the state court.

Norfolk Southern appeals. On appeal, Demay argues that we cannot review the

district court's decision because we lack jurisdiction to review the district court's order

under 28 U.S.C. § 1447(d), which precludes a court of appeals from reviewing a

district court's order remanding a case to state court based on lack of subject matter

jurisdiction. Norfolk Southern, however, argues that we have jurisdiction to review

the district court's order deciding the Longshore Act issue and the order of remand.
2

Typically, the DOL's Benefits Review Board initially resolves claims under the

Longshore Act. 33 U.S.C. § 919. The courts of appeals have jurisdiction to review

the final orders of the Benefits Review Board. 33 U.S.C. § 921(c).

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It further argues that Demay was injured while working in a maritime status and that

we should issue a writ of mandamus directing the district court to dismiss the action

without prejudice and permit the Department of Labor (DOL) to resolve Demay's

claim.2

II.

A.

We must first address the question of our jurisdiction. "Congress has limited

our power to review district court remand orders." Filla v. Norfolk S. Ry. Co., 336

F.3d 806, 809 (8th Cir. 2003). The court's "ability to review the order depends on the

district court's basis for remand. A remand order based upon lack of subject-matter

jurisdiction is not reviewable on appeal." Id. "If a district court's order is based upon

a lack of subject-matter jurisdiction, the order—whether erroneous or not and whether

review is sought by appeal or by extraordinary writ—must stand." Id. When

determining the basis for remand, "'[t]his court reviews a lower court's reasoning for

remand independently and determines from the record the district court's basis for

remand.'" Id. (quoting Lindsey v. Dillard's, Inc. 306 F.3d 596, 598 (8th Cir. 2002)).

According to 28 U.S.C. § 1447(c), "[i]f at any time before final judgment it

appears that the district court lacks subject matter jurisdiction, the case shall be

remanded. . . . The State court may thereupon proceed with such case." Section

1447(d) states that, "[a]n order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise . . . ." In analyzing 28 U.S.C.

§ 1447(c) and (d), the Supreme Court has explained that they should be read together.
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Section 1445(c) reads, "[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."

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See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343-44 (1976) (holding

that a remand was reviewable and ultimately improper when the district court

remanded to state court based on the district court's heavy docket, which was not

provided for in § 1447(c)).

When a plaintiff files an FELA complaint in state court, a defendant may not

remove the lawsuit to federal court. See 28 U.S.C. § 1445(a) ("A civil action in any

State court against a railroad . . . arising under [45 U.S.C. §§ 51 to 60] may not be

removed to any district court of the United States."); Evans v. Mo. Pac. R.R. Co., 795

F.2d 57, 58-59 (8th Cir. 1986) ("[I]f the employee chooses to bring an FELA claim

in state court, section 1445(a) protects [the] plaintiff's right to bring the action there

and prevents removal to the federal district court by the railroad."), cert. denied, 431

U.S. 1013 (1987). After Norfolk Southern removed the case to federal court, the

district court remanded the case to state court because § 1445(a) prohibited removal.

Demay argues that because the district court remanded the case to state court

based on the prohibition of removal in § 1445(a), the district court effectively

remanded based on lack of subject matter jurisdiction, which would preclude us from

reviewing the remand order under § 1447(c) and (d). Norfolk Southern, however,

argues that the remand order was merely a straightforward application of § 1445(a)

and that in remanding the case to state court, the district court made no determination

regarding subject matter jurisdiction.

We have not previously addressed the issue of whether § 1445(a) is

jurisdictional. However, we have implicitly held that 28 U.S.C. § 1445(c), which is

parallel to § 1445(a), is not jurisdictional.3

 In Bloom v. Metro Heart Group of St.

Louis, Inc., 440 F.3d 1025 (8th Cir. 2006), a plaintiff filed a complaint against her
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employer, claiming violations of the Family and Medical Leave Act (FMLA), 29

U.S.C. §§ 2601 to 2654, and workers' compensation laws. The case was removed to

federal court by the employer, and the district court granted summary judgment in

favor of the employer on the FMLA claim. We affirmed and, in a footnote at the end

of our opinion, stated that, in her brief, the plaintiff "ask[ed] in passing that if this

court affirms summary judgment on the FMLA claim, it remand the workers'

compensation claim to state court, citing 28 U.S.C. § 1445(c). [The plaintiff] waived

this argument when she did not timely move for remand in district court, on this

ground." Bloom, 440 F.3d at 1031 n.2 (emphasis added). Like Bloom, in Phillips v.

Ford Motor Co., 83 F.3d 235 (8th Cir. 1996), in discussing the procedural history of

the case before resolving the merits, we stated that the plaintiff had filed a complaint

against the defendants on a workers' compensation claim, but that the defendants had

removed the case to federal court based on diversity jurisdiction. We explained that

"[a]ctually, the district court lacked removal jurisdiction by operation of 28 U.S.C. §

1445(c) (civil action in state court arising under workers' compensation laws of that

state may not be removed). However, plaintiffs failed to timely move for remand."

Phillips, 83 F.3d at 236 n.3 (emphasis added) (citation omitted). If § 1445 truly

involved subject matter jurisdiction, it could not be waived, as parties cannot waive

subject matter jurisdiction. See United States v. Cotton, 535 U.S. 625, 630 (2002)

(explaining that "subject-matter jurisdiction, because it involves a court's power to

hear a case, can never be forfeited or waived").

While § 1445(a) does involve a different subject matter than § 1445(c), because

the two statutes are parallel, Congress likely intended that the two be interpreted

similarly. See, e.g., Nijhawan v. Holder, 129 S. Ct. 2294, 2301 (2009) ("Where . . .

Congress uses similar statutory language and similar statutory structure in two

adjoining provisions, it normally intends similar interpretations."). Accordingly,

because we held in Bloom and Phillips that parties had waived their arguments that

their claims should have been remanded to state court under § 1445(c), then § 1445(c)

cannot involve subject matter jurisdiction. And because § 1445(a) and § 1445(c)
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should be interpreted similarly, see Nijhawan, 129 S. Ct. at 2301, we conclude that

§ 1445(a) likewise does not involve subject matter jurisdiction.

Other circuits have also held that § 1445(a) is not a jurisdictional statute. In

Feichko v. Denver & Rio Grande Western Railroad Co., for example, the Tenth

Circuit held that as long as the federal district court would have had jurisdiction over

the case if it had been originally filed there, "removal in violation of section 1445(a)

may be waived by a plaintiff, either by a failure to move the district court to remand,

. . . or by a failure to raise the matter on appeal." Feichko, 213 F.3d 586, 591 (10th

Cir. 2000), cert. denied, 531 U.S. 1074 (2001). See also Albarado v. S. Pac. Transp.

Co., 199 F.3d 762, 765 (5th Cir. 1999) (explaining that it had "consistently held that

. . . § 1445(a) is not jurisdictional" and that "wrongful removal is a procedural defect,

which may be waived if not timely asserted"); Carpenter v. Baltimore & O.R. Co., 109

F.2d 375, 379-80 (6th Cir. 1940). And the Fourth Circuit has held that because the

question of whether the Longshore Act applies to a work related injury is exclusively

a federal question that cannot be resolved by state courts, it had jurisdiction to review

the claim in spite of § 1445 and § 1447. Shives v. CSX Transp., Inc. (In re CSX

Transp., Inc.), 151 F.3d 164, 167 (4th Cir.), cert. denied, 525 U.S. 1019 (1998).

Because we conclude that § 1445 is not a jurisdictional statute, the district

court's remand order was not based on a lack of subject matter jurisdiction.

Accordingly, § 1447, which precludes us from reviewing a district court's order

remanding the case to state court based on its own lack of subject matter jurisdiction,

does not apply here. Thus, we have jurisdiction to review the merits of the district

court's remand order.

B.

After determining that we have jurisdiction to review the district court's remand

order, we must now turn to the merits of the district court's decision remanding the
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case to state court because Demay's injury was covered by the FELA, not the

Longshore Act.

To determine if an injured employee is covered by the Longshore Act, we look

to whether the injured employee was working: (1) at a maritime situs; and (2) in a

maritime status. See Caputo, 432 U.S. at 264-65 ("The 1972 Amendments [to the

Longshore Act] thus changed what had been essentially only a 'situs' test of eligibility

for compensation to one looking to both the 'situs' of the injury and the 'status' of the

injured."). To meet the situs requirement of the Longshore Act, the injury must occur

"upon the navigable waters of the United States (including any adjoining pier, wharf,

dry dock, terminal, building way, marine railway, or other adjoining area customarily

used by an employer in loading, unloading, repairing, dismantling, or building a

vessel)." 33 U.S.C. § 903(a). Both parties agree that the situs requirement was met,

as the injury occurred at Lamberts Point.

The status test is occupational, although Congress has failed to specify exactly

what types of jobs meet the status requirement of the Longshore Act. In 33 U.S.C.

§ 902(3), Congress defined, for the purposes of the Longshore Act, "employee" as

"any person engaged in maritime employment, including any longshoreman or other

person engaged in longshoring operations, and any harbor-worker including a ship

repairman, shipbuilder, and ship-breaker," but the statute excluded various other

specific groups of individuals if they were covered by a state workers' compensation

law. Additionally, the Supreme Court has held that land-based activity, including

work done by railway employees, can qualify for coverage under the Longshore Act.

See Chesapeake & O. Ry. Co. v. Schwalb, 493 U.S. 40, 48 (1989) (holding that

railway employees engaged in cleaning spilled coal during the loading process were

covered by the Longshore Act).

According to the Supreme Court, Congress did not necessarily want the focus

to be on the exact activity the employee was engaged in at the time of the injury, but
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rather the employee's occupation. See Caputo, 432 U.S. at 273 ("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."). "[W]hen 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 indisputably longshoring operations and who, without the

1972 amendments, would be covered for only part of their activity." Id. The Supreme

Court explained that the closest Congress came to defining the status requirement is

the "typical example" of shoreward coverage contained in the Committee Reports. Id.

at 266. "The example clearly indicates an intent to cover those workers involved in

the essential elements of unloading a vessel—taking cargo out of the hold, moving it

away from the ship's side, and carrying it immediately to a storage or holding area."

Id. at 266-67. "The example also makes it clear that persons who are on the situs but

are not engaged in the overall process of loading and unloading vessels are not

covered." Id. at 267. In addition to discussing the "typical example" provided by

Congress, in a similar situation the Supreme Court explained that to meet the status

requirement, the job must involve loading or unloading. See Schwalb, 493 U.S. at 46

("[T]he maritime employment requirement as applied to land-based work other than

longshoring . . . is an occupational test focusing on loading and unloading. Those not

involved in those functions do not have the benefit of the [Longshore] Act.") (citing

Herb's Welding, Inc. v. Gray, 470 U.S. 414, 424 (1985)).

According to Norfolk Southern, "[t]he coal loading process is initiated when a

permit is issued by Norfolk Southern for the ship describing the tonnage and number

of coal cars for the vessel." (Appellant's Br. at 6.) However, in a case involving a

similar procedure for loading coal onto vessels, the Supreme Court stated that, "[t]he

loading process begins when a hopper car is rolled down an incline to a mechanical

dumper which is activated by trunnion rollers and which dumps the coal through the

hopper onto conveyor belts." Schwalb, 493 U.S. at 42-43. Here, the loaded cars are

brought into the Barney Yard, spotted, and secured. After that, other workers, not
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Demay or any of his crew, release the cars and send them down the incline to the

rotary dumpers, which rotate the coal cars 180 degrees and dump the coal onto

conveyors that move the coal onto Pier 6 for loading into the holds of coal ships. The

process here is very similar to that in Schwalb, and so the Supreme Court's

explanation as to when the loading process begins guides us. Moreover, the Fourth

Circuit has relied on the Supreme Court's statement in determining whether an injury

was covered under the Longshore Act in another case involving an injury that

occurred at Lamberts Point. Etheridge v. Norfolk & W. Ry., 9 F.3d 1087, 1090 (4th

Cir. 1998). In that instance, the injury occurred to someone initiating the descent of

railroad cars. When considering the injury, the Fourth Circuit explained that, "[w]e

believe that [the Supreme Court's statement regarding when the loading process

begins] makes plain that a brakeperson in the Barney Yard, who initiates the descent

of railroad cars to the pier, begins the loading process and, therefore, engages in

employment that is essential to the loading process." Id. Here, in contrast, Demay's

crew did not initiate the descent of railroad cars but instead worked with the cars

before the loading process. He and his crew were spotting and securing the rail cars

loaded with coal in the Barney Yard, before they were rolled down the incline to the

dumpers. Thus, applying the Supreme Court's analysis, because Demay's duties were

completed before the cars were released and began their descent, he was not involved

in the loading process. Hence, his job was not covered under the "status" requirement

of the Longshore Act. Additionally, even beyond the activity he was engaging in at

the time of his injury, there is nothing in the record to indicate that his employment

was such that he spent "at least some of [his] time in indisputably longshoring

operations." See Caputo, 432 U.S. at 273.

Norfolk Southern argues that Demay's injury is covered by the Longshore Act

because his actions were "essential or integral" to the loading process because

"[s]witching the railroad cars into Barney Yard on to the correct tracks in the correct

sequence is 'essential and integral' to the overall loading process." (Appellant's Br. at

31.) See, e.g., Schwalb, 493 U.S. at 46 (explaining that in Caputo, the Court held that
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the Longshore Act "covered all those on the situs involved in the essential or integral

elements of the loading or unloading process"). However, the activities must also be

actually involved in the loading process itself. For example, an individual working

within the site who arranges the employee work schedules could be considered

"essential or integral" to the overall loading process because without an organized

work schedule no one would know when to come to work and the loading would

never occur. However, to conclude that this person meets the "status" requirement of

the Longshore Act is plainly ridiculous. While the Supreme Court did hold that

janitors (whose work at times took them elsewhere on Lamberts Point) were covered

by the Longshore Act, see id. at 48, they were injured while cleaning up coal that had

spilled at the dumper location during the loading process. Demay's duties were

completed before the loading process began, he did not meet the status requirement

of the Longshore Act, and therefore his injury is not covered by the Longshore Act.

His claim is brought under the FELA, and the district court did not err in remanding

the case to the state court. Thus, we respectfully reject Norfolk Southern's argument

that we should issue a writ of mandamus directing the DOL to resolve Demay's claim.

III.

Accordingly, the judgment of the district court is affirmed.

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