## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 09-2210

________________ In re: Norfolk Southern Railway Company,

Petitioner.

________________ No. 09-2333

________________ 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]

________________ Submitted: September 21, 2009 Filed: January 27, 2010

________________ Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.

________________ HANSEN, Circuit Judge.1 The Honorable Rodney W. Si ppel, United States District Judge for the Eastern District of Missouri.
-2- 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 court 1 determined that the action was appropriately brought under the F ELA 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 th at Norfolk Southern uses to load coal into oceangoing vessels. Lamberts Point is di vided into four areas : the CT Yard, the Barney Yard, Pier 6, and the empty yard. A rriving loaded coal cars are stored in the CT Yard. The loaded cars are then broughtinto the Barney Yard and secured by setting their manual brakes. Once there, th ey are released oneby 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 unloade d, they are moved to the empty yard to return to the coal mines for refilling.

Demay, a railroad switc hman/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 th em in place. Other-3- workers later would release the cars, se nding 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, De may told the engineer to st op 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 C ourt 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. See28 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 th e 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 th e 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 juri sdiction 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, ar gues that we have ju risdiction to review the district court's order deciding the L ongshore Act issue and the order of remand.2 Typically, the DOL's Benefits Review Boar d 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).
-4- It further argues that Demay was injured wh ile 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 re mand order based upon lack of subject-matter jurisdiction is not review able 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 dete rmines 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 s ubject matter jurisdiction, the case shall be remanded. . . . The State court may ther eupon 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.3 Section 1445(c) reads, "[a] civil acti on 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."
-5- SeeThermtron Prods., Inc. v. Hermansdorfer , 423 U.S. 336, 343-44 (1976) (holding that a remand was reviewable and ultimat ely 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. See28 U.S.C. § 1445(a) ("A civil action in any State court against a railroad . . . aris ing under [45 U.S.C. §§ 51 to 60] may not be removed to any district court of the Unite d 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 th e federal district court by the railroad."), cert. denied , 431 U.S. 1013 (1987). After Norfolk Southern re moved 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 ju risdiction, 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 addresse d the issue of whether § 1445(a) is jurisdictional. However, we have implicitly held th at 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-6- employer, claiming violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 to 2654, and workers' compen sation laws. The case was removed to federal court by the employer, and the di strict 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, th e 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, citi ng 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 stat ed that the plaintiff had filed a complaint against the defendants on a workers' compen sation claim, but that the defendants had removed the case to federal c ourt based on diversity jurisd iction. We explained that "[a]ctually, the district court lacked re moval jurisdiction by ope ration 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 coul d 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 lik ely 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 si milar 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 jurisdicti on. And because § 1445(a) and § 1445(c)-7- should be interpreted similarly, seeNijhawan , 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 di strict court would havehad jurisdiction over the case if it had been origin ally filed there, "removal inviolation 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 app eal." 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) (explaini ng 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 asse rted"); Carpenter v. Baltimore & O.R. Co. , 109 F.2d 375, 379-80 (6th Cir. 1940). And the Fourth Circuit has heldthat because the question of whether the Longshor e 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. Sh ives 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 fro m 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 jurisdic tion to review the merits of the district court's remand order.

B.

After determining that we have jurisdicti on to review the district court's remand order, we must now turn to the merits of the district court's decision remanding the-8- case to state court because Demay's in jury was covered by the FELA, not the Longshore Act.

To determine if an injured employee is covered by the Longs hore 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, th e 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 th e 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 employmen t, 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 qualif y for coverage unde r the Longshore Act. SeeChesapeake & O. Ry. Co. v. Schwalb , 493 U.S. 40, 48 (1989) (holding that railway employees engaged in cleaning sp illed 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 th e employee was engaged in at the time of the injury, but-9- rather the employee's occupation. SeeCaputo , 432 U.S. at 273 ("Both the text and the history demonstrate a desire to provi de continuous covera ge throughout their employment to these amphibious workers who, without the 1972 amendments, would be covered only for part of their activity."). "[W]hen Congress saidit 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 a nd 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 coveragecontained 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 ve ssel—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 discussi ng the "typical example" provided by Congress, in a similar situation the Suprem e 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 th e benefit of the [Longshore] Act.") (citing Herb's Welding, Inc. v. Gray , 470 U.S. 414, 424 (1985)).

According to Norfolk Southern, "[t]he co al loading process is initiated when a permit is issued by Norfolk Southern for the ship describing th e 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 vesse ls, 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 be lts." 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-10- Demay or any of his crew, release the car s 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 lo ading 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 proce ss begins guides us. Moreover, the Fourth Circuit has relied on the Supreme Court's st atement 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 inthe Barney Yard, who initiates the descent of railroad cars to the pier, begins the lo ading 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 railr oad 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, becauseDemay'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 th e "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-11- the Longshore Act "covered all those on the s itus involved in the essential or integral elements of the loading or unloading proce ss"). However, the activities must also be actually involved in the loading process itself. For example, an individual working within the site who arranges the employ ee work schedules could be considered "essential or integral" to the overall load ing process because without an organized work schedule no one would know when to come to work and the loading would never occur. However, to c onclude 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 el sewhere on Lamberts Point) were covered by the Longshore Act, see id. at 48, they were injured wh ile 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 in jury 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 resp ectfully reject Norfolk Southern's argument that we should issue a writ of mandamus di recting the DOL to resolve Demay's claim.

III.

Accordingly, the judgment of the district court is affirmed.

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