    Case: 12-51285   Document: 00512341448    Page: 1   Date Filed: 08/14/2013




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                                                 FILED
                                                               August 14, 2013
                              No. 12-51285
                            Summary Calendar                   Lyle W. Cayce
                                                                    Clerk




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 Ernewayn sued her employer, Home Depot U.S.A., Inc. (“Home
Depot”), in state court, claiming that Home Depot’s negligence caused her on-
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                                       No. 12-51285

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.


                                              I.
      Because Home Depot was not a subscriber to the Texas Worker’s Compen-
sation 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 “com-
ment 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 Spe-
cialty 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.”


      1
          Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

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                                  No. 12-51285

                                       II.
      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.


                                       A.
      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

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                             No. 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, 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. Albarado, 199 F.3d at 765. See also Certain Under-
 writers at Lloyd’s, London v. Warrantech Corp., 461 F.3d 568, 572
 (5th Cir. 2006).

     [Arguing against this conclusion, Swift] relies on language in
 Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280, 283 (5th Cir.
 2004), that in turn relies on In re Excel Corp., 106 F.3d 1197 (5th
 Cir. 1997). The language in Schexnayder suggests that a remand
 based on § 1445(c) is a non § 1447(c) ground for removal and thus
 reviewable on appeal. Schexnayder states:

       Non § 1447(c) grounds for which a district court might
       remand a case include those remands made for purely
       discretionary reasons, . . . abstention-based remands,
       . . . remands based on § 1445(c), In re Excel Corp., 106
       F.3d 1197, 1200 (5th Cir. 1997), and remands based on
       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 responded to a similar argument by
 stating expressly that In re Excel should not be relied on in resolv-
 ing this issue.

       Thus, to the extent that our implicit holding in In re
       Excel can be read as inconsistent with our prior hold-




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                                       No. 12-51285

               ings in Johnson,[2] Hopkins, and Williams, our earlier
               decisions control. . . . Thus, remand based upon
               § 1445(a)’s statutory restriction against removal is a
               procedural defect under § 1447(c), and the district
               court’s remand 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 is whether the district court remanded based on § 1445(c) or,
as Home Depot asserts, on a discretionary basis because of an ambiguity.
According to Home Depot, the court declined to hold that § 1445(c) precluded
removal but instead considered two contrary lines of cases and concluded that
      it is not yet established as to whether a negligence action against a
      nonsubscribing employer “arises under” the TWCA. Because our
      sister courts are split on the issue and this Circuit has not expressly
      ruled on the issue, the Court finds that ambiguity exists as to
      whether the instant action is in fact removable.

Home Depot reasons that in light of perceived “ambiguity,” and without relying
on the language of § 1445(c) or any other removal statute, the district court
decided to remand. Home Depot labels that “at best, a discretionary remand
order without statutory authority” and therefore reviewable.
      Despite Home Depot’s creative parsing, the remand was based on
§ 1445(c). The only ambiguity the court found was in whether that section pre-
cludes removal of suits like Ernewayn’s. Because of the policy underlying
§ 1445(c) and this court’s instruction that ambiguities in removal statutes should
be construed against removal, the court construed § 1445(c) in favor of remand.


      2
          Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (5th Cir. 1989).

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                                      No. 12-51285

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




       3
         Had we any doubt about the court’s basis for remand, we could not review it, because
it contains no clear statement that remand was based on a non-§ 1447(c) ground. Certain
Underwriters at Lloyd’s, London, 461 F.3d at 572 (“Our inquiry is guided by a clear statement
requirement: for a remand order to be reviewable on appeal, the district court must ‘clearly
and affirmatively’ state a non-§ 1447(c) ground for remand.”).

                                             6
