Published United States Court of Appeals for The

Appeal: 13-2127 Doc: 33 Filed: 06/23/2014 Pg: 1 of 28 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2112 In re: NORFOLK SOUTHERN RAILWAY COMPANY, Petitioner. No. 13-2127 GILBERT BYNUM, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY COMPANY Defendant–Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, Chief District Judge. (2:13-cv-00373-RBS-LRL) Argued: May 15, 2014 Decided: June 23, 2014 Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges. Appeal dismissed and petition for writ of mandamus denied by published opinion. Chief Judge Traxler wrote the opinion, in which Judge Niemeyer and Judge Duncan joined. Appeal: 13-2127 Doc: 33 Filed: 06/23/2014 Pg: 2 of 28 ARGUED: Jonathan Henry Walker, MASON, MASON, WALKER & HEDRICK, PC, Newport News, Virginia, for Appellant. William D. Breit, SERIOUS INJURY LAW CENTER PLLC, Virginia Beach, Virginia, for Appellee. ON BRIEF: Christopher R. Hedrick, MASON, MASON, WALKER & HEDRICK, PC, Newport News, Virginia; Danielle M. Kruer, Daniel R. Warman, VENTKER & WARMAN, PLLC, Norfolk, Virginia, for Appellant. 2 Appeal: 13-2127 Doc: 33 Filed: 06/23/2014 Pg: 3 of 28 TRAXLER, Chief Judge: Norfolk Southern Railway Company (“Norfolk Southern”) appeals a district court order remanding to state court a claim brought against it pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § § 51-60. Norfolk also petitions for a writ of mandamus vacating the district court’s order and either dismissing the case or, alternatively, remanding to the district court to address the merits of its federal defense to the FELA claim. We conclude that we lack jurisdiction to review the district court’s order on appeal and therefore dismiss the appeal. We also deny mandamus relief. I. Gilbert Bynum was employed by Norfolk Southern as a control operator and brakeman at Lamberts Point Coal Terminal. The terminal, which was created for the purpose of loading coal from railroad cars onto ocean-bound vessels, was located on the Elizabeth River in Norfolk, Virginia. It was Bynum’s job to release the brakes of loaded coal cars so that the cars would roll downhill into a rotary dumper, which would in turn “rotate the coal car 180 degrees and dump the coal onto conveyors, which move the coal onto [the pier] for deposit into the holds of coal ships.” J.A. 43. On November 22, 2010, Bynum was injured when, while walking to recover a radio transmitter, “he tripped and fell on coal dust and debris that had been allowed to accumulate 3 Appeal: 13-2127 Doc: 33 Filed: 06/23/2014 Pg: 4 of 28 between and aside the railroad tracks.” J.A. 10. Bynum subsequently applied for, and was awarded, federal workers’ compensation benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 901-950. Bynum later filed suit in state court on May 29, 2013, under FELA, which, as is relevant here, provides railway employees with the right to recovery for injury or death caused in whole or in part by the negligence of the railroad’s officers, agents, or employees.1 See 45 U.S.C. § 51; see Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999). Bynum alleged negligence on the part of Norfolk Southern and sought $30 million in damages. On July 3, 2013, Norfolk Southern filed a notice of removal to federal court, arguing that Bynum had applied for and received benefits under the LHWCA, that the LHWCA in fact covered his injury, and that the LHWCA barred any recovery under FELA. See Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 42 (1989). The Railroad contended that whether Bynum’s injury was covered by the LHWCA was “‘exclusively a federal question which Congress never intended for state courts to resolve.’” J.A. 6 (quoting Shives v. CSX Transp., Inc., 151 F.3d 164, 167 1 FELA provides for concurrent federal and state jurisdiction over FELA claims. See 45 U.S.C. § 56. 4 Appeal: 13-2127 Doc: 33 Filed: 06/23/2014 Pg: 5 of 28 (4th Cir. 1998)). On this basis, Norfolk Southern maintained that removal was proper under 28 U.S.C. §§ 1441 and 1446. On July 15, 2013, Bynum moved to remand the matter to state court. Bynum cited 33 U.S.C. §§ 919 and 921, which provide that LHWCA claims are adjudicated in the first instance by the Department of Labor (“DOL”), with appeals considered by the Benefits Review Board, and appeals from those decisions considered by the United States Courts of Appeals. Bynum alleged that the district court lacked “jurisdiction to determine coverage under the LHWCA because Congress has specifically eliminated the jurisdiction of the federal district court concerning the LHWCA.” J.A. 18. Bynum’s motion also asserted that his “claim is not removable pursuant to 28 U.S.C. § 1445(a)” − which bars removal of FELA claims brought in state court2 − “and [that] it is not removable under 28 U.S.C. § 1441 or § 1446.”3 J.A. 18. 2 Section 1445(a) provides that “[a] civil action in any State court against a railroad or its receivers or trustees, arising under sections 1-4 and 5-10 of the Act of April 22, 1908 (45 U.S.C. §§ 51-54, 55-60) may not be removed to any district court of the United States.” 3 As is relevant here, 28 U.S.C. § 1441(a) provides that [e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United (Continued) 5 Appeal: 13-2127 Doc: 33 Filed: 06/23/2014 Pg: 6 of 28 That same day, July 15, 2013, Norfolk Southern filed a motion in federal district court to dismiss Bynum’s complaint, arguing that, although his claim was filed under FELA, his injury actually fell within the scope of the LHWCA’s coverage and the LHWCA therefore provided the exclusive remedy for his injury. See 33 U.S.C. § 905(a). On that basis, Norfolk Southern maintained that Bynum’s claim should have been filed with the DOL, see 33 U.S.C. § 919, and that both the district court and the state court lacked jurisdiction over the claim. On July 18, 2013, Bynum filed a response to Norfolk Southern’s motion to dismiss. He noted that he did “not concede that the exclusivity provisions of the LHWCA apply in this case.” J.A. 55. He argued that 33 U.S.C. § 905(a), applying to suits against employers, would not bar a negligence claim under § 905(b) against a vessel owner in his capacity as owner rather than employer. He also maintained that “[t]he courts have not decided whether a railroad worker may sue his employer under 33 U.S.C. § 905(a) in its railroad capacity, where as in this case, the defendant admits Bynum was retrieving a radio transmitter at the time of his injury.” J.A. 55. Bynum noted that his remand States for the district and division embracing the place where such action is pending. 28 U.S.C. § 1441(a). Section 1446 outlines the applicable procedure for removal of civil actions. 6 Appeal: 13-2127 Doc: 33 Filed: 06/23/2014 Pg: 7 of 28 motion remained pending and that the state court would have jurisdiction to resolve the question of whether the exclusivity provisions of the LHWCA barred his FELA claim. On July 24, 2013, Norfolk Southern responded to Bynum’s motion to remand. Conceding that “§ 1445(a) prevents removal of an FELA action filed in state court,” Norfolk Southern nonetheless contended that it had “not removed this case to litigate Bynum’s FELA claim, but to determine whether that claim is barred” by virtue of the fact that Bynum’s injury fell within the scope of LHWCA’s coverage. J.A. 59. Norfolk Southern argued that Bynum’s injury was covered by the LHWCA under the facts of this case and that the LHWCA therefore provided the exclusive remedy. The district court granted Bynum’s remand motion and denied as moot Norfolk Southern’s motion to dismiss. The court noted that 28 U.S.C. § 1441(a) allows removal of any civil action that was brought in state court but which the district court had jurisdiction over “‘[e]xcept as otherwise expressly provided by Act of Congress.’” J.A. 90 (emphasis in original). Recognizing that “[s]ection 1445(a) prohibits the removal of a civil action arising under FELA[] which is filed in state court against a railroad,” the district court concluded that Bynum’s FELA “claim must be remanded to state court.” J.A. 90. 7 Appeal: 13-2127 Doc: 33 Filed: 06/23/2014 Pg: 8 of 28 The district court acknowledged Norfolk Southern’s argument that because Bynum “has already received LHWCA benefits, the exclusivity provisions of the LHWCA bar further recovery under FELA.” J.A. 91. However, the district court did not determine whether Bynum’s injury actually fell within the scope of LHWCA’s coverage or whether the LHWCA otherwise barred recovery under FELA. Rather, the district court concluded that the mere facts that Bynum brought his action in state court, that he asserted a claim under FELA (and that he timely moved to remand his action to state court once Norfolk Southern filed a notice of removal) were sufficient to trigger the § 1445(a) removal bar.

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