UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-3676

IN RE: MEDSCOPE MARINE LIMITED and

H. GLAHR & CO.,

Petitioners.

On Petition for Writ of Mandamus to the United States

District Court for the Middle District of Louisiana

(August 31, 1992)

Before POLITZ, Chief Judge, WILLIAMS and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

Medscope Marine Limited and H. Glahr & Company petition for a

writ of mandamus asking that we vacate an order of the district

court which remanded this case to state court. Concluding that we

are without jurisdiction we dismiss the petition.

Background

Roberto Geguera died while on the high seas. The plaintiffsrespondents, Charaito Bautista Geguera and Mamerto Geguera, filed

wrongful death claims in Louisiana state court, invoking the Jones1 46 U.S.C. App. § 688.

2 46 U.S.C. App. §§ 761-767.

3 McDermott Int 'l v. Lloyd's Underwriters of London

, 944

F.2d 1199 (5th Cir. 1991); In re Shell Oil Co.

, 932 F.2d 1518 (5th

Cir. 1991); In re Shell Oil Co.

, 932 F.2d 1523 (5th Cir. 1991);

Baris v. Sulpicio Lines, Inc.

, 932 F.2d 1540 (5th Cir. 1991); In re Digicon Marine, Inc. , 966 F.2d 158 (5th Cir. 1992).

2 Act, 1 the Death on the High Seas Act (DOHSA), 2 and general maritime

law. Medscope and Glahr removed the case, asserting that Mamerto

Geguera had a separate and independent claim under DOHSA which

would be removable if sued upon alone. The plaintiffs timely

sought re mand, contending that there was no removal jurisdiction

over DOHSA claims. The district court granted the motion to remand

on that basis and denied a subsequent motion for an interlocutory

appeal certif ication under 28 U.S.C. § 1292(b). The instant

application for writ of mandamus followed.

Analysis

Before us is an order of remand based on a timely motion under

28 U.S.C. § 1447(c) asserting a defect in removal procedure other

than lack of subject matter j urisdiction. Our threshold

consideration is whether we have jurisdiction to entertain this

application for a writ of mandamus.

In prior decisions we have determ ined that we have

ju risdiction to review remand orders based upon u ntimely remand

motions, finding that to be a rare exception to the general rule of

nonreviewability. 3 In those cases we suggested in dicta 4 that a4 McDermott I nt'l , 944 F.2d at 1201 n.1; I n re Shell Oil

Co. , 932 F.2d at 1520 n.5; In re Shell Oil Co. , 932 F.2d at 1527;

B aris , 932 F.2d at 1543; I n re Digicon Marine, Inc.

, 966 F.2d at

160 n.1.

5 Added by May 24, 1949, ch. 139, § 84, 63 Stat. 102.

Section 1447(d) has not been amended since.

6 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976).

7 531 F.2d 257 (5th Cir. 1976).

8 P.L. 100-702, Title X, § 1016(c), 102 Stat. 4670.

3 remand order based upon a ti mely remand motion would be

n o nreviewable because of the prohibition contained in section

1447(d) which provides that:

An order remanding a case to the State court from

which it wa s removed is not reviewable on appeal or

otherwise, . . . 5

In Thermtron Products, Inc. v. Hermansdorfer 6 the Supreme

Court limited the broad nonreviewability language of

s ection 1447(d) to remand orders based on section 1447(c)

.

Pre-1988 section 1447(c) provided, in relevant part, that:

If at any time before final judgment it appears that

the case was removed improvidently and without

jurisdiction, the district court shall remand the

case. . . .

In London v. United States Fire Ins. Co. 7 we held that either

"improvident removal" or "lack of [subject matter] jurisdiction" is

a proper, independent basis for remand under section 1447(c). As

amended in 1988 8 section 1447(c) provides, in relevant part, that:9 Save The Bay, Inc. v. United States Army , 639 F.2d 1100

(5th Cir. 1980).

1 0 H.R. Rep. No. 889, 100th Cong., 2d Sess. 1988, reprinted

in 1988 USCC&AN 5982, 6031-6034.

4

A motion to remand the case on the basis of any defect in removal procedure 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. . . .

The resolution of the jurisdictional question in the instant case

turns on the congressional intent in th e 1988 amendment to

section 1447(c).

The sec ond sentence of section 1447(c) commands the remand

upon discovery of lack of subject matter jurisdiction, reflecting

the established rubric that a federal court has the continuing

obligati on to assure itself of its power to act in a proceeding

before it, whether the issue is raised by the parties or by the

court on its own motion. 9

The first sentence of secti on 1447(c), however, requires a

more considered reflection. Aided by the limited legislative

history of the 1988 amendment to section 1447(c), 10 we conclude that

the intent of Congress was to impose a 30-day time limit for a

remand motion based upon "any defect in removal procedure." The

relevant legislative history informs that:

Section 1447(c) now appears to requ ire remand to

state court if at any time befo re final judgment it

appears that the removal was improvident. So long as the

defect in removal procedure does not involve lack of

federal subject matter jurisdiction, there is no reason

why either State or Federal courts, or the parties should11 Id. at 6033.

5

be subject to the burdens of shuttling a case between two

courts that each have subject matter jurisdiction. There

is also some risk that a party who is aware of a defect

in removal procedure may hold the defect in reserve as a

means of forum shopping if the litigation should take an

unfavorable turn. T he ame ndment provides a period of

30 days within which remand must be sought on any ground

other than the lack of subject matter jurisdiction

. The

amendment is written in terms of "removal procedure" in

order to avoid any implication that remand is unavailable

after disposition of all federal question s leaves only

State law questions that might be decided as a matter of

ancillary or pendent jurisdiction or that might instead

be remanded. 11

Thus informed, we are persuaded that section 1447(c) is a mere

reconstitution of the existing statute and jurisprudence, with the

addition of a strict time limitation on the privilege of filing

remand motions. The legislative history addressed several core

concerns relating to an unbridled right to seek a reman d: (1) a

party's right to seek remand at any time before final judgment on

any ground other than the lack of subject matter jurisdiction ;

(2) the burden on state and federal courts; (3) the burden on the

parties; and (4) the potential sandbagging should the federal

litigation take an unfavorable turn. All of these concerns are

ameliorated by the imposition of a 30-day time limit for the filing

of the remand motions. Thus, brief that it is, the legislative

history of section 1447(c) convinces us that the "removed

improvidently" language of pre-1988 section 1447(c) was replaced,

without intent to change the meaning, with the "defect in removal

procedure" in the current section 1447(c).

Having thus conclud ed that section 1447(c) is a specific,12 Thermtron , 423 U.S. at 343, 96 S.Ct. at 589, 46 L.Ed.2d

at 549 (emphasis ours).

1 3 Offshore Logistics, Inc. v. Tallentire , 477 U.S. 207, 106

S.Ct. 2485, 91 L.Ed.2d 174 (1986).

14 Baris , 932 F.2d at 1343.

6 tim e-limited reconstitution of the earlier statute, in light of

intervening jurisprudence, we may now address the jurisdictional

question, guided by controlling Supreme Court precedent. The

Thermtron court held that section 1447(d)

prohibits review of all remand orders issued pursuant to

§ 1447(c) whether erroneous or not and whether review is

sought by appeal or by extraordinary writ

. . . If a

trial judge purports to remand a case on the grounds that

it was removed 'improvidently and without jurisdiction,'

his order is "unreviewable." 12

We have consistently followed T hermtron 's teachings. The cases

cited in footnotes 3 and 4, supra, involved orders of remand based

upon untimely motions to remand for a defect in removal procedure.

Because such a remand order is not a section 1447(c) remand, review

was not precluded by section 1447(d) or Thermtron

.

In the instant case, the di strict court remanded because a

DOHSA case may not be removed to federal court. State and federal

courts have concurrent original jur isdiction over DOHSA cases; 1 3

thus, the case before us could not be remanded for lack of subject

mat ter jurisdiction. If DOHSA cases are not removable, then

removal of a DOHSA case necessarily constitutes a defect in the

manner by which the DOHSA case was brought before the federal

court. This would be a defect in the removal procedure, 1 4 waived15 Thermtron , supra.

16 Baris , 932 F.2d at 1543 n.3.

17 See Filho v. Pozos Int'l Drilling Services, Inc. , 662

F.Supp. 94 (S.D.Tex. 1987) (for a persuasive, well-reasoned, and

scholarly opinion concluding that DOHSA cases are nonremovable).

7 absent a time ly motion to remand. On the other hand, if DOHSA

cases are removable, then the remand order premised upon a defect

in removal procedure, although erroneous, would not be reviewable

under Thermtron

. 15 We have pretermitted the question of DOHSA-case

removability on a number of prior occasio ns. 1 6 Because of the

Thermtron teaching that a section 1447(c) remand order is

nonreviewable, "whether erroneous or not," we are not now required

to solve the DOHSA removability conundrum. 17

We conclude that we are without jurisdiction to entertain the

instant application for writ of mandamus to vacate an order of

remand based upon a timely section 1447(c) motion raising a defect

in the removal procedure.

DISMISSED FOR LACK OF APPELLATE JURISDICTION.