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Ernewayn v. Home Depot U.S.A., Inc.

United States Court of Appeals, Fifth Circuit

August 14, 2013

MARY A. ERNEWAYN, Plaintiff-Appellee,
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 on- 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.


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."


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.


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 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. A ...

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