CIVIL PRACTICE – FELA; Longshore Act; Jurisdiction 

Posted: 1:00 am Mon, February 8, 2010
By admin
Tags: Civil Practice

Where a Missouri resident employed by Norfolk Southern Railway who was injured while working in Virginia sued his employer under the Federal Employers’ Liability Act and the employer sought removal to federal court arguing that the action should be brought under the Longshore Act, the appellate court has jurisdiction to review the merits of the District Court’s remand order, and the District Court properly found that the injury was covered by FELA, rather than the Longshore Act, because the employee’s job duties were completed before train cars descended to a pier.

“[Employee] 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)…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….

“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.” Judgment is affirmed.