                                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.
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
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
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
(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

court 2 − “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
       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
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
     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.                 The court

therefore    remanded    Bynum’s      claim    to    state    court     without

considering the merits of Norfolk Southern’s motion to dismiss.

     Norfolk Southern timely appealed to us, and it also filed a

petition for a writ of mandamus requesting us to vacate the

district     court’s    order   and    either       dismiss   the     case   or

alternatively remand to the district court to address the merits

of its federal defense to the FELA claim.             We agreed to consider

the mandamus petition together with the related appeal, and thus

the two cases were consolidated.              Bynum subsequently moved to

dismiss the appeal as barred by 28 U.S.C. § 1447(d) and to have

the mandamus petition denied for the same reason.

                                      II.



                                      8
     We first address the question of whether we are authorized

to review the merits of the district court’s remand order.                          We

conclude that we are not.

                     A.     Applicable Legal Principles

     The removal statute prohibits appellate review of district

courts’ orders “remanding a case to the State court from which

it was removed.”          28 U.S.C. § 1447(d).            The statute serves to

“neutralize    ‘prolonged      litigation        on    threshold     nonmeritorious

questions.’”      Barlow v. Colgate Palmolive Co., 2014 WL 1689002,

at *4 (4th Cir. 2014) (quoting Powerex Corp. v. Reliant Energy

Servs., Inc., 551 U.S. 224, 237 (2007)).                  We have explained that

this policy is so strong that § 1447(d) bars our review “even if

the remand order is manifestly, inarguably erroneous.”                         Lisenby

v. Lear, 674 F.3d 259, 261 (4th Cir. 2012) (internal quotation

marks omitted).

     Nevertheless, § 1447(d)’s prohibition on appellate review

has itself been limited, first in Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 346 (1976).                       In that case, the

Supreme   Court    held     that   §     1447(d)      only    restricts      appellate

review of remand orders that are “based on grounds in § 1447(c)”

and that “invoked the grounds specified therein.”                         E.D. ex rel.

Darcy   v.   Pfizer,      Inc.,    722    F.3d     574,      579   (4th    Cir.   2013)

(alteration    and    internal     quotation          marks   omitted).        Section

1447(c) provides in relevant part that “[a] motion to remand the

                                          9
case on the basis of any defect other than lack of subject

matter jurisdiction must be made within 30 days after the filing

of     the     notice     of   removal        under   section           1446(a).”        Thus,

§ 1447(c) allows a district court to remand “based on: (1) a

district court’s lack of subject matter jurisdiction or (2) a

defect       in      removal     ‘other       than     lack        of     subject       matter

jurisdiction’ that was raised by the motion of a party within 30

days    after      the    notice      of    removal   was    filed.”          Ellenburg       v.

Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008)

(quoting 28 U.S.C. § 1447(c)).                      And, § 1447(d) generally bars

our review of a remand that is ordered on one of these bases.

See id.

       The § 1447(d) prohibition on appellate review was further

limited by this court in Borneman v. United States, 213 F.3d

819, 826 (4th Cir. 2000), wherein we held that district courts

did not have authority to remand on a basis generally authorized

by § 1447(c) when a more specific statute would prohibit remand.

In such a case, § 1447(d) does not bar our review.                            See id.

       Finally,         even   when    § 1447(d)      prohibits         our   review     of    a

remand order itself, the severability exception fashioned by the

Supreme Court in City of Waco v. U.S. Fidelity & Guaranty Co.,

293     U.S.      140    (1934),      can     authorize      our        review    of    issues

collateral to the remand order.                  See Palmer v. City Nat. Bank of

W.    Va.,     498      F.3d   236,    240    (4th    Cir.    2007).             However,     we

                                               10
“restrict[]       the     applicability         of     the     Waco    exception       to

purportedly reviewable orders that (1) have a preclusive effect

upon    the    parties         in   subsequent       proceedings       and      (2)   are

severable, both logically and factually, from the remand order.”

Id.     The exception does not allow reversal of the remand order

itself.      See Powerex Corp., 551 U.S. at 236.

       Two of our decisions, Shives v. CSX Transportation, Inc.,

151 F.3d 164 (4th Cir. 1998), and In re Blackwater Security

Consulting,       LLC,        460   F.3d     576     (4th      Cir.    2006),     figure

prominently in our analysis of § 1447(d), and we therefore begin

by discussing them in some detail.

                                      B.     Shives

       In Shives, a railroad employee injured in a work-related

accident (“Shives”) filed a negligence suit against his employer

in state court under FELA and also filed a protective claim with

the    DOL    under     the     LHWCA.       See     Shives,     151   F.3d     at    166.

Contending that Shives was engaged in maritime employment and

therefore entitled only to workers compensation under the LHWCA,

the    employer   removed       the   case    to     federal    district      court   and

moved to dismiss the case to allow Shives’s administrative claim

to proceed before the DOL.               See id.      Shives moved to remand the

case to state court, arguing that he was not engaged in maritime

employment and thus had the right to litigate his negligence

claim in state court under FELA.                   See id.       The district court

                                           11
concluded that Shives’s injury was actually not covered by the

LHWCA and thus remanded the case to state court.                         See id.     The

employer appealed the remand order and also filed a petition for

writ of mandamus seeking review of the order.                    See id.

       We     began       with   the    question     of    whether      we    possessed

jurisdiction         to    consider       the    merits    of   the     appeal.       We

determined that the district court had not remanded based on a

conclusion      that       it    lacked     subject-matter       jurisdiction,       but

instead on the basis that § 1445(a) prohibited removal.                         See id.

at 167.       However, we noted that the district court’s conclusion

that   § 1445(a)          prohibited    removal     was    in   turn    based   on   the

court’s substantive ruling that Shives’s injury fell outside the

scope of LHWCA coverage.               See id.    We expressed some doubt as to

whether that ruling was of the type included in § 1447(c).                           See

id.    In the end, however, we determined, apparently on the basis

of the Waco severability exception to § 1447(d), that whether

remand was on a basis included in § 1447(c) was immaterial since

the conclusion that the LHWCA did not provide coverage was a

“conceptual      antecedent”       to     the    court’s   ruling      that   § 1445(a)

barred removal.             Id.; see Blackwater, 460 F.3d at 588.                     We

reasoned      that    the    LHWCA-coverage        question     was    “exclusively    a

federal question which Congress never intended for state courts

to resolve” and that insofar as the basis for the remand order

“did    not    fall       precisely      under    the     grounds      identified    in”

                                            12
§ 1447(c), we could exercise appellate jurisdiction.                         Shives,

151 F.3d at 167. 4           Alternatively, we concluded that even if our

analysis of the appellate jurisdiction issue were incorrect, we

would vacate the remand order via mandamus in order “[t]o avoid

forfeiting the federal courts’ role of reviewing LHWCA coverage

issues.”         Id.

       We then addressed the merits of the issue of whether the

LHWCA provided coverage, concluding that it did.                        See id. at

168-71.         We further reasoned that “LHWCA coverage is exclusive

and preempts Shives from pursuing an FELA claim.”                    Id. at 171.

       Having determined that LHWCA covered Shives’s injury and

that       it    barred    Shives’s   FELA    claim,    we    were   “left   with   a

procedural conundrum” regarding the remedy to be applied.                          Id.

Although the district court had incorrectly determined that the

LHWCA      did    not     cover   Shives’s    injury,   its   determination    that

removal was improper was nevertheless correct for two reasons:

First, § 1445(a) prohibits the removal of FELA cases brought in

state court, and second, district courts do not have original

jurisdiction over LHWCA cases and § 1441 allows removal only of

cases that could have been brought in district court in the

first instance.             See id.     At the same time, the state court


       4
          Our opinion actually refers to 1445(c) rather than
§ 1447(c), but that appears to be the result of a typographical
error.


                                             13
would not have jurisdiction over Shives’s (now recharacterized)

claim because state courts do not have jurisdiction over LHWCA

claims.      See id.      We concluded “[i]n the peculiarities of th[at]

case,” that had the district court correctly analyzed the LHWCA-

coverage question and determined that the LHWCA covered Shives’s

injuries, the proper remedy would have been to simply dismiss

the action and allow Shives to proceed through the appropriate

administrative process.             See id.       We noted that dismissing would

have allowed the district court to avoid “committing the federal

question     of   LHWCA     coverage      to   the    state    court    when       Congress

intended that it be decided exclusively in federal court.”                             Id.

We   therefore      vacated    the       district     court’s    remand       order    and

remanded the case to the district court with instructions to

dismiss for lack of subject-matter jurisdiction.                       See id.

                                    C.    Blackwater

       Now we turn to Blackwater.                 In that case, according to the

complaint,        several      men       (“the       decedents”)        entered        into

independent-contractor             service     agreements      with     two    companies

(collectively,       “Blackwater”)           to    provide     services       supporting

Blackwater’s contracts with third parties.                      See Blackwater, 460

F.3d    at   580.      Blackwater        assigned     the     decedents       to   provide

security for a company that had an agreement to provide various

forms   of    support     to   a    defense       contractor    that    was    providing

services for the United States Armed Forces in support of its

                                             14
operations         in    Iraq.    See    id.      According   to    the    complaint,

Blackwater had represented to the decedents when they entered

into       their        independent-contractor       agreements      that     certain

precautionary measures would be taken, but that in fact those

measures were not taken and the decedents were ultimately killed

as a result.              See id. at 580-81.         The administrator of the

decedents’ estates sued Blackwater as well as the man who had

been       the     decedents’     supervisor      (hereinafter,       collectively,

“Blackwater”) in North Carolina state court alleging state-law

claims      for     wrongful     death    and     fraud.      See    id.     at   581.

Blackwater subsequently removed the action to federal district

court, asserting that the Defense Base Act (“DBA”), 42 U.S.C.

§§ 1651 – 1654, completely preempted the state-law claims and

that       the    case     presented     issues    concerning       unique    federal

interests that created a federal question. 5                  See id.      Blackwater

then moved the district court to dismiss the action on the basis

of lack of subject-matter jurisdiction because the claims were

covered by the DBA and thus could be litigated only in the DOL,

which has jurisdiction over DBA claims in the first instance.

See id.

       5
          “The DBA is a federal statute that incorporates and
extends the [LHWCA] to select forms of employment outside of the
United States.” Nordan v. Blackwater Sec. Consulting, LLC, 382
F. Supp. 2d 801, 807 (E.D.N.C. 2005), appeal dismissed, mandamus
denied by In re Blackwater Sec. Consulting, LLC, 460 F.3d 576
(4th Cir. 2006).


                                           15
      The district court determined that it lacked subject-matter

jurisdiction     over       the    case,     concluding           that    the   DBA    did    not

completely preempt the state-law claims and that Blackwater’s

assertion of a unique federal interest in the claims was based

on    the    incorrect       assumption         that        the     district      court       had

jurisdiction     to     determine        whether          the    decedents      were    covered

under the DBA.         See id. at 581.              Based on its conclusion that it

lacked subject-matter jurisdiction, the district court remanded

the case to state court under § 1447(c).                            See id.       Blackwater

had   urged    the    district         court    to    instead       remedy      the    lack    of

jurisdiction by dismissing the case as barred by the DBA.                                     See

id. at 581-82.         However, the district court determined that it

lacked      jurisdiction      to       decide       whether       the     DBA   covered       the

claims.      See id. at 582.

      Blackwater       appealed        the     remand       order    to    this   court       and

petitioned for a writ of mandamus.                         See id.        We held that we

lacked appellate jurisdiction and we declined to order mandamus

relief.        See    id.         In    analyzing          the    appellate-jurisdiction

question, we began by noting that the district court had clearly

remanded the case on a basis included in § 1447(c) insofar as

remand was based on the district court’s determination that it

lacked subject-matter jurisdiction.                        See id. at 585; see also

id.   at     591-92.         Accordingly,            we    concluded       that       § 1447(d)



                                               16
prohibited us from reviewing the merits of the appeal.                    See id.

at 585.

       We also considered an argument by Blackwater that the Waco

severability exception allowed us to review the district court’s

mootness-based denial of Blackwater’s motion to dismiss.                        We

concluded that the exception did not allow our review because

the denial of the motion on mootness grounds had no preclusive

effect and because it was not logically and factually severable

from   the    remand   order.      See      id.    at   588-90.   Regarding     the

preclusive effect, we noted that “[o]ne of the first principles

of preclusion . . . is that the precluding order either actually

determined the issue sought to be precluded (in the case of

issue preclusion) or issued a final judgment on the merits (in

the case of claims preclusion).”                  Id. at 589 (citing Martin v.

American Bancorporation Ret. Plan, 407 F.3d 643, 650, 653 (4th

Cir.    2005)).          We     also     specifically        distinguished      our

severability-exception analysis in Shives on the basis of two

differences in procedural posture between the cases.                       First,

unlike in Shives, wherein we expressed doubt regarding whether

the district court had remanded on a basis included in § 1447(c)

– and thus whether § 1447(d) applied – the remand in Blackwater

was clearly based on lack of subject-matter jurisdiction, which

is plainly a ground included in § 1447(c).                   See id. at 587-88.

Second,      the   district   court    in     Blackwater    did   not   reach   the

                                         17
question       of    whether       the     DBA       covered      the    alleged     injuries,

whereas      the    district       court       in    Shives       did   determine    that    the

LHWCA covered the plaintiff injury and that determination was a

“conceptual antecedent” to the court’s remand decision.                                  See id.

at 588.

       We also considered whether we had jurisdiction under the

Waco       severability         exception       to       review    the    district       court’s

determinations           that    the     DBA     did      not     completely     preempt     the

state-law claims and that no unique federal interest created a

federal question that would provide removal jurisdiction.                                    See

id. at 590.         We concluded that neither ruling could be reviewed

under Waco because neither would have any preclusive effect on

Blackwater         and    neither      could        be    disengaged      from     the    remand

order.       See id. 6

       We next considered whether we could review the remand order

via mandamus.            Noting that the Supreme Court has interpreted

§ 1447(d) to prohibit not only appellate review but also review

via    mandamus,         we    concluded       we     were      precluded    from    granting

mandamus relief.              See id. at 593.

       6
           Although it is not relevant to the present case, we
also declined Blackwater’s request to create a new exception to
§   1447(d)’s     prohibition   for     cases “undermin[ing]   the
constitutional sequestration of foreign affairs and war powers
within the political branches of the federal government, out of
reach   of   both   the   federal   and   the state  judiciaries.”
Blackwater, 460 F.3d at 592.



                                                 18
      We further determined that there was no tension between the

DBA   and   § 1447(d)   of   the       type    that    could   authorize   mandamus

relief.     See id. at 593-94 (distinguishing Borneman, 213 F.3d at

826).     We noted that “the statute ‘in tension’ with § 1447(d) in

Borneman    declared    that    certain         state-court      actions    against

federal employees ‘shall be removed.’                  28 U.S.C. § 2679(d)(2).”

Blackwater, 460 F.3d at 593.            Accordingly, we observed:

      That statute thus directly and specifically addressed
      the removability of the relevant class of claims and
      contained language that channeled the district court’s
      authority to remand in such cases.     This absence of
      discretion to remand created the tension of which we
      spoke in Borneman.    By contrast, Blackwater has not
      identified any portion of the DBA that similarly
      addresses either the removability to federal district
      court of state court actions purportedly preempted by
      the DBA or the district court’s peculiar lack of
      discretion with respect to remand of such cases.

Id. at 593-94 (citation omitted).

      We also rejected the notion that the DBA defense presented

such “extraordinarily important question[s] of federal law” that

mandamus relief would be appropriate to prevent the state court

from adjudicating it.          Id. at 594.            In this regard, we noted

that neither the Supreme Court’s decision in Thermtron nor our

prior   decisions   provided       a    basis    for    circumventing      1447(d)’s

prohibition in order to avoid having a state court decide a

federal issue.      See id.     Distinguishing Shives specifically, we

noted that Shives “presented the court of appeals with an order

in which the district court actually decided . . . as part of

                                          19
its   inquiry     into    the     permissibility              of      removal,     whether        the

LHWCA covered the plaintiff’s claims” whereas in Blackwater “we

ha[d] no coverage question to review – and rightfully so, as the

district court did not need to reach that issue as part of its

removal   jurisdiction           analysis.”                Id.     at    594-95.         We       also

distinguished       Shives      on     the    basis         that      Shives     presented         “an

uncontested       factual      record”       on       which      to     decide    the    coverage

question, whereas in Blackwater, we had only the pleadings to

consider.         Id.     at    594-95.               In    light        of    both     of     these

distinctions,       we    concluded          that       “mandamus         is     not    only      not

compelled    by    Shives       but    is    also          particularly        inappropriate.”

Id. at 595.

                         D.     Appellate Review Analysis

      Having    outlined        the    applicable            legal       principles,         we    now

turn to the facts of the case before us.                                The district court’s

decision in the present case was based on the simple fact that a

FELA claim brought in state court cannot be removed to a federal

court, see 28 U.S.C. § 1445(a), a point that Bynum had timely

raised in his motion to remand.                       As we have explained, § 1447(c)

authorizes      remand         based    on        a     “lack[          of]    subject       matter

jurisdiction” and remand based on “any defect other than lack of

subject matter jurisdiction” that was raised by a party “within

30 days after the filing of the notice of removal.”                                     28 U.S.C.



                                              20
§ 1447(c). 7         The     § 1445(a)       bar   does    not    deprive      courts     of

subject-matter jurisdiction over cases to which it applies.                              See

Shives, 151 F.3d at 167 (explaining that “the district court

could not rule . . . that it was without jurisdiction because

federal courts have concurrent jurisdiction over FELA claims”).

We are thus faced with the question that we did not answer in

Shives, namely whether nonremovability based on § 1445(a) is a

“defect other than lack of subject matter jurisdiction” within

the meaning of § 1447(c).              We conclude that it is.

     The     word      “defect”       is     not    defined      in     § 1447     or   the

associated statutes.            However, the sixth edition of Black’s Law

Dictionary,         which     was     the    edition      that    was     current       when

§ 1447(c)      was    amended,        defines      “defect”      as   “[t]he     want    or

absence     of      some     legal    requisite;       deficiency;        imperfection;

insufficiency.”             Black’s    Law    Dictionary      418     (6th   ed.    1990).

“Defect”       is     similarly        defined       in     Webster’s        Third       New


     7
            Prior to 1996, § 1447(c) provided as follows:

     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.

28 U.S.C. § 1447(c) (1995) (emphasis added).       In 1996, the
statute was amended to substitute the words “any defect other
than lack of subject matter jurisdiction” for “any defect in
removal procedure.” Pub. L. No. 104-219, 110 Stat. 3022 (1996).


                                              21
International       Dictionary         as     “want        or     absence       of     something

necessary for completeness, perfection, or adequacy in form or

function.”         Webster’s   Third         New       International         Dictionary        591

(1981).

      From the context of § 1447, it is apparent “that ‘defect’

refers to a failure to comply with the statutory requirements

for removal provided in 28 U.S.C. §§ 1441-1453.”                                 Kamm v. ITEX

Corp., 568 F.3d 752, 755 (9th Cir. 2009); see Cook v. Wikler,

320   F.3d   431,    435    (3d    Cir.       2003)        (holding       that       “the   plain

language     of    [§ 1447(c)]         now    applies       broadly       to     include       all

removals that are not authorized by law” (internal quotation

marks omitted)).           That scope certainly encompasses § 1445(a).

See Albarado v. Southern Pac. Transp. Co., 199 F.3d 762, 766

(5th Cir. 1999) (holding that “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”); see also Vasquez

v. North Cnty. Transit Dist., 292 F.3d 1049, 1062 (9th Cir.

2002) (holding that nonremovability under 28 U.S.C. § 1445(c),

which   prohibits      removal         of    civil      cases        arising     under      state

workmen’s    compensation         law,       is    a   “defect       other     than     lack    of

subject matter jurisdiction” within the meaning of § 1447(c));

Pierpoint     v.    Barnes,       94     F.3d       813,        816-21    (2d        Cir.   1996)

(applying pre-1996-amendment version of 28 U.S.C. § 1447(c) and

                                              22
holding      that    court   of   appeals     lacked   jurisdiction   to   review

remand to state court based on district court’s determination

that claims brought in state court under the Death on the High

Seas   Act    were    not    removable). 8     As   such,   the §   1447(d)   bar

applies, and we lack jurisdiction to review the remand order on

appeal. 9


       8
          In re Norfolk Southern Railway Co., 592 F.3d 907 (8th
Cir. 2010), cited by Norfolk Southern, does little to advance
its cause. In that case, the plaintiff brought a FELA claim in
state court. See id. at 910. The defendant removed the action
based on the contention that the LHWCA covered the injury and
barred recovery under the FELA. See id. However, the district
court concluded that the LHWCA did not cover the plaintiff’s
injury, and thus that the claim was properly brought under FELA.
See id. Accordingly, the district court remanded to state court
based on the conclusion that § 1445(a) barred removal of the
claim.    See id. at 910-11.       The defendant appealed and
petitioned for mandamus relief.   See id.   The plaintiff argued
that § 1447(d) barred review of the remand order because the
order was based on a lack of subject-matter jurisdiction.    See
id. at 910.      Concluding that a § 1445(a) defect is not
jurisdictional, the Eighth Circuit held that § 1447(d) did not
bar appellate review of the remand order.       See id. at 912.
However, the court did not specifically address whether
nonremovability under § 1445(a), if timely raised, qualifies as
a “defect other than lack of subject matter jurisdiction” within
the meaning of § 1447(c).
       9
          For the same reasons that we held that there was no
tension-creating statute in Blackwater that would bar the
district court from remanding to state court and negate the
application of § 1447(d), see 460 F.3d at 593-94 (distinguishing
Borneman v. United States, 213 F.3d 819, 826 (4th Cir. 2000)),
there is no such tension-creating statute here. After all, the
federal defense asserted by the employer in Blackwater, that the
LHWCA provided the exclusive remedy for the plaintiffs’
injuries, is the same defense that Norfolk Southern asserts here
except for the fact that Blackwater asserted a defense under the
DBA, which “extends the [LHWCA] to select forms of employment
(Continued)
                                         23
       Although      Norfolk   Southern    relies    on   Shives   in     asserting

that we possess appellate jurisdiction, Shives does not warrant

that conclusion.          As we have noted, in Shives we did not decide

whether a remand according to § 1445(a) was the type of ruling

that    § 1447(c)        includes.       See   Shives,      151    F.3d    at    167

(explaining that the district court’s “ministerial application

of § 1445(a) depended on its substantive ruling that Shives was

not    engaged      in   maritime    employment”    and   noting   that    “[t]his

determination is probably not of the type of ruling included in

28 U.S.C. § 1447(c)” although “[t]his conclusion . . . is not

entirely without doubt”).

       As we noted in Blackwater, our appellate review in Shives

was based on the fact that the district court’s decision that

the LHWCA covered Shives’s injury was a “conceptual antecedent”

to the remand order.           Blackwater, 460 F.3d at 587, 588 (internal

quotation marks omitted).            Here, in contrast, the district court

did not reach the merits of the coverage question as it denied

Norfolk Southern’s motion to dismiss on mootness grounds.                       Thus,

for    the   same    reasons    we   articulated    in    Blackwater,     the   Waco

severability exception does not allow our review of that ruling.

Namely, the district court’s dismissal of the motion to dismiss



outside of the United States,” Nordan, 382 F. Supp. 2d at 807,
whereas Norfolk Southern simply asserts an LHWCA defense
directly.


                                          24
on mootness grounds had no preclusive effect since the court did

not resolve the merits of the issue and there was no final

judgment    on    the    merits;     nor    was    the    denial       of    that   motion

logically and factually severable from the remand order.                                 See

id. at 588-90.          Furthermore, since our decision in Shives, the

Supreme    Court     has   further     clarified         the    scope       of    the   Waco

severability exception by holding that it “does not permit an

appeal when there is no order separate from the unreviewable

remand     order.”         Powerex,        551    U.S.    at     236        (emphasis    in

original)).       The fact that there is no such separate order here

is yet another reason why the Waco exception does not provide us

with jurisdiction over Norfolk Southern’s appeal.

                             E.     Mandamus Analysis

       Because § 1447(d) deprives us of appellate jurisdiction, we

also   lack      authority    to     grant       mandamus      relief.           Congress’s

restriction on review of remand orders applies to review “on

appeal or otherwise.”             28 U.S.C. § 1447(d).           “The Supreme Court

has interpreted this language to forbid the use of mandamus to

circumvent the requirements of § 1447(d).”                     Blackwater, 460 F.3d

at 593 (citing          Thermtron, 423 U.S. at 343)); see Borneman, 213

F.3d at 824.

       Norfolk Southern asserts that unless we vacate the remand

order, a state court will be left to decide the question of

whether the LHWCA provides a defense to Bynum’s claims.                                 But

                                            25
that is the very circumstance we faced in Blackwater, wherein we

held that mandamus relief was not warranted.                       See 460 F.3d at

592-95.     In distinguishing the facts that were before us in that

case from those in Shives – wherein we concluded that we could

grant   mandamus     relief    regardless      of    whether      § 1447(d)       barred

review on appeal, see 151 F.3d at 167 – we noted that the fact

that the district court in Shives actually decided the question

that    the     LHWCA   covered    the       alleged       injury        was     “a    key

difference.”       Blackwater, 460 F.3d at 594.             We conclude as well

here that with the district court not having reached the merits

of Norfolk Southern’s LHWCA defense, Shives does not warrant our

granting mandamus relief.

       Moreover,    granting    mandamus       relief      here        would    also   be

inappropriate       because    Norfolk       Southern       has        not     made    the

requisite showing that its “right to the issuance of the writ is

clear     and   indisputable.”         Media        Gen.   Operations,          Inc.   v.

Buchanan, 417 F.3d 424, 433 (4th Cir. 2005); see also In re

Grand Jury Subpoena, 596 F.2d 630, 632 (4th Cir. 1979) (per

curiam)    (holding     that   there   was     no    showing      of    “a     clear   and

indisputable right” when the issue was “close”).                         Specifically,

Norfolk Southern has not shown that it was clearly entitled to

have the district court dismiss Bynum’s FELA claim rather than

remand it to the state court.



                                        26
      The facts of this case, after all, are quite different than

those that were before us in Shives.             In Shives, the district

court’s decision to remand was based on its conclusion that the

LHWCA did not cover Shives’s injury, see Shives, 151 F.3d at

166, and there is no indication that Shives had disputed that

his FELA claim would be barred if the LHWCA covered his injury.

On   appeal,   we   concluded   that   the    LHWCA    in   fact   did   cover

Shives’s injury and therefore that his FELA claim was barred.

See id. at 168-71.      Having determined that Shives actually had

no FELA claim, we concluded that remand to state court was not a

possibility as “[s]tate courts . . . do not have jurisdiction

over LHWCA cases.”     Id. at 171; see id. (“[W]e are faced with an

LHWCA case over which neither the state court nor the district

court had jurisdiction.”).      We also decided against remanding to

state court to avoid “committing the federal question of LHWCA

coverage to the state court when Congress intended that it be

decided exclusively in the federal court.”            Id.

      In this case, neither of these considerations stands in the

way of a remand to state court.              First, neither the district

court nor our court has addressed the LHWCA coverage question; 10



      10
          Norfolk Southern had no clear and undisputable right
even to have the district court decide the merits of the LHWCA
coverage question.    Indeed, in Blackwater, we noted that we
“rightfully” had “no coverage question to review” when “the
(Continued)
                                   27
thus, Bynum’s FELA claim continues to exist and the state court

would have jurisdiction to adjudicate that claim, see 45 U.S.C.

§ 56.      Second, the-scope-of-LHWCA coverage issue on which we

were focused in Shives is not even likely to be an issue in the

state court on remand because Bynum has already received LHWCA

benefits.     The primary question remaining will be whether his

prior receipt of LHWCA benefits bars his FELA claim.                          Thus, in

the absence of any clear barrier to remanding to state court, it

simply cannot be said that Norfolk Southern has a clear and

indisputable right not to have the case remanded to state court.

                                        III.

     In    sum,   we   conclude      that     § 1447(d)     bars    review     of   the

district    court’s    order    by     appeal    or   via   mandamus.         We    also

conclude that Norfolk Southern has not established entitlement

to   mandamus     relief    because      it     has   not   shown    a   clear      and

indisputable      right    to   such    relief.       Accordingly,       we    dismiss

Norfolk Southern’s appeal and deny its mandamus petition.



                                                       APPEAL DISMISSED AND
                                       PETITION FOR WRIT OF MANDAMUS DENIED




district court did not need to reach that issue as part of its
removal jurisdiction analysis.” 460 F.3d at 595.


                                         28
