                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

       ________________

          No. 09-2210
       ________________

In re: Norfolk Southern Railway       *
Company,                              *
                                      *
            Petitioner.               *

       ________________
                                            Appeals from the United States
          No. 09-2333                       District Court for the
       ________________                     Eastern District of Missouri.

David Demay,                          *          [PUBLISHED]
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Norfolk Southern Railway              *
Company,                              *
                                      *
            Appellant.                *

                              ________________

                              Submitted: September 21, 2009
                                  Filed: January 27, 2010
                              ________________

Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.
                      ________________

HANSEN, Circuit Judge.
       David Demay, an employee of the Norfolk Southern Railway Company
(Norfolk Southern), was injured while working in Norfolk, Virginia, at the Lamberts
Point Coal Terminal (Lamberts Point). A Missouri resident, Demay filed a lawsuit
against Norfolk Southern in Missouri state court under the Federal Employers’
Liability Act (FELA), 45 U.S.C. §§ 51 to 60. Norfolk Southern removed the lawsuit
to the United States District Court for the Eastern District of Missouri, claiming the
action was governed by the Longshore and Harbor Workers' Compensation Act
(Longshore Act), 33 U.S.C. §§ 901 to 950. The district court1 determined that the
action was appropriately brought under the FELA and remanded the case back to state
court. Norfolk Southern appeals. For the following reasons, we affirm.

                                           I.

       Lamberts Point is a coal-loading facility that Norfolk Southern uses to load coal
into oceangoing vessels. Lamberts Point is divided into four areas: the CT Yard, the
Barney Yard, Pier 6, and the empty yard. Arriving loaded coal cars are stored in the
CT Yard. The loaded cars are then brought into the Barney Yard and secured by
setting their manual brakes. Once there, they are released one by one and roll down
an incline onto one of two rotary dumpers. The dumpers rotate the cars and dump the
coal onto conveyors, which move the coal to Pier 6 to be deposited into the holds of
oceangoing colliers. Once the cars are unloaded, they are moved to the empty yard
to return to the coal mines for refilling.

       Demay, a railroad switchman/conductor employed by Norfolk Southern, lives
in Huntsville, Missouri. On October 22, 2008, he was temporarily working at
Lamberts Point when he was injured. Demay's crew's job was to place (i.e., "spot")
the rail cars in the Barney Yard and set their handbrakes to keep them in place. Other


      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

                                          -2-
workers later would release the cars, sending them down the incline to the rotary
dumpers. At the time of the injury, his crew was spotting rail cars loaded with coal
in the Barney Yard. Demay climbed onto the lead loaded car and directed the
movement of the string of loaded cars into the Barney Yard while communicating by
radio with the locomotive engineer at the other end of the moving cars. When the cars
were in their proper place, Demay told the engineer to stop the train. While climbing
down off the car, Demay fell and landed on the track, breaking several ribs.

       Demay filed a lawsuit in the Circuit Court of St. Louis County, Missouri, to
recover for his injuries under the FELA. A case filed in state court under the FELA
may not be removed to federal court by the defendant. See 28 U.S.C. § 1445(a) ("A
civil action in any State court against a railroad . . . arising under [45 U.S.C. §§ 51 to
60] may not be removed to any district court of the United States."). However,
Norfolk Southern removed Demay's suit to federal court, claiming that Demay's
claims are controlled exclusively by the Longshore Act because Demay was engaged
in maritime employment at the time of his injury. To be covered by the Longshore
Act, an employee must be injured while working: (1) at a maritime situs; and (2) in
a maritime status. Ne. Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 265
(1977). Both parties agree that Demay was working at a maritime situs. The district
court held that Demay was not working in a maritime status, and it found that his
injury was covered by the FELA, not the Longshore Act, and it therefore lacked
removal jurisdiction to review the claim. The district court thus remanded the case to
the state court.

       Norfolk Southern appeals. On appeal, Demay argues that we cannot review the
district court's decision because we lack jurisdiction to review the district court's order
under 28 U.S.C. § 1447(d), which precludes a court of appeals from reviewing a
district court's order remanding a case to state court based on lack of subject matter
jurisdiction. Norfolk Southern, however, argues that we have jurisdiction to review
the district court's order deciding the Longshore Act issue and the order of remand.

                                           -3-
It further argues that Demay was injured while working in a maritime status and that
we should issue a writ of mandamus directing the district court to dismiss the action
without prejudice and permit the Department of Labor (DOL) to resolve Demay's
claim.2

                                           II.

                                           A.

       We must first address the question of our jurisdiction. "Congress has limited
our power to review district court remand orders." Filla v. Norfolk S. Ry. Co., 336
F.3d 806, 809 (8th Cir. 2003). The court's "ability to review the order depends on the
district court's basis for remand. A remand order based upon lack of subject-matter
jurisdiction is not reviewable on appeal." Id. "If a district court's order is based upon
a lack of subject-matter jurisdiction, the order—whether erroneous or not and whether
review is sought by appeal or by extraordinary writ—must stand." Id. When
determining the basis for remand, "'[t]his court reviews a lower court's reasoning for
remand independently and determines from the record the district court's basis for
remand.'" Id. (quoting Lindsey v. Dillard's, Inc. 306 F.3d 596, 598 (8th Cir. 2002)).

      According to 28 U.S.C. § 1447(c), "[i]f at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be
remanded. . . . The State court may thereupon proceed with such case." Section
1447(d) states that, "[a]n order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise . . . ." In analyzing 28 U.S.C.
§ 1447(c) and (d), the Supreme Court has explained that they should be read together.


      2
        Typically, the DOL's Benefits Review Board initially resolves claims under the
Longshore Act. 33 U.S.C. § 919. The courts of appeals have jurisdiction to review
the final orders of the Benefits Review Board. 33 U.S.C. § 921(c).

                                          -4-
See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343-44 (1976) (holding
that a remand was reviewable and ultimately improper when the district court
remanded to state court based on the district court's heavy docket, which was not
provided for in § 1447(c)).

       When a plaintiff files an FELA complaint in state court, a defendant may not
remove the lawsuit to federal court. See 28 U.S.C. § 1445(a) ("A civil action in any
State court against a railroad . . . arising under [45 U.S.C. §§ 51 to 60] may not be
removed to any district court of the United States."); Evans v. Mo. Pac. R.R. Co., 795
F.2d 57, 58-59 (8th Cir. 1986) ("[I]f the employee chooses to bring an FELA claim
in state court, section 1445(a) protects [the] plaintiff's right to bring the action there
and prevents removal to the federal district court by the railroad."), cert. denied, 431
U.S. 1013 (1987). After Norfolk Southern removed the case to federal court, the
district court remanded the case to state court because § 1445(a) prohibited removal.

      Demay 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). Norfolk Southern, however,
argues that the remand order was merely a straightforward application of § 1445(a)
and that in remanding the case to state court, the district court made no determination
regarding subject matter jurisdiction.

       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.3 In Bloom v. Metro Heart Group of St.
Louis, Inc., 440 F.3d 1025 (8th Cir. 2006), a plaintiff filed a complaint against her

      3
       Section 1445(c) reads, "[a] civil action in any State court arising under the
workmen's compensation laws of such State may not be removed to any district court
of the United States."

                                           -5-
employer, claiming violations of the Family and Medical Leave Act (FMLA), 29
U.S.C. §§ 2601 to 2654, and workers' compensation laws. The case was removed to
federal court by the employer, and the district court granted summary judgment in
favor of the employer on the FMLA claim. We affirmed and, in a footnote at the end
of our opinion, stated that, in her brief, the plaintiff "ask[ed] in passing that if this
court affirms summary judgment on the FMLA claim, it remand the workers'
compensation claim to state court, citing 28 U.S.C. § 1445(c). [The plaintiff] waived
this argument when she did not timely move for remand in district court, on this
ground." Bloom, 440 F.3d at 1031 n.2 (emphasis added). Like Bloom, in Phillips v.
Ford Motor Co., 83 F.3d 235 (8th Cir. 1996), in discussing the procedural history of
the case before resolving the merits, we stated that the plaintiff had filed a complaint
against the defendants on a workers' compensation claim, but that the defendants had
removed the case to federal court based on diversity jurisdiction. We explained that
"[a]ctually, the district court lacked removal jurisdiction by operation of 28 U.S.C. §
1445(c) (civil action in state court arising under workers' compensation laws of that
state may not be removed). However, plaintiffs failed to timely move for remand."
Phillips, 83 F.3d at 236 n.3 (emphasis added) (citation omitted). If § 1445 truly
involved subject matter jurisdiction, it could not be waived, as parties cannot waive
subject matter jurisdiction. See United States v. Cotton, 535 U.S. 625, 630 (2002)
(explaining that "subject-matter jurisdiction, because it involves a court's power to
hear a case, can never be forfeited or waived").

       While § 1445(a) does involve a different subject matter than § 1445(c), because
the two statutes are parallel, Congress likely intended that the two be interpreted
similarly. See, e.g., Nijhawan v. Holder, 129 S. Ct. 2294, 2301 (2009) ("Where . . .
Congress uses similar statutory language and similar statutory structure in two
adjoining provisions, it normally intends similar interpretations."). Accordingly,
because we held in Bloom and Phillips that parties had waived their arguments that
their claims should have been remanded to state court under § 1445(c), then § 1445(c)
cannot involve subject matter jurisdiction. And because § 1445(a) and § 1445(c)

                                          -6-
should be interpreted similarly, see Nijhawan, 129 S. Ct. at 2301, we conclude that
§ 1445(a) likewise does not involve subject matter jurisdiction.

         Other circuits have also held that § 1445(a) is not a jurisdictional statute. In
Feichko v. Denver & Rio Grande Western Railroad Co., for example, the Tenth
Circuit held that as long as the federal district court would have had jurisdiction over
the case if it had been originally filed there, "removal in violation of section 1445(a)
may be waived by a plaintiff, either by a failure to move the district court to remand,
. . . or by a failure to raise the matter on appeal." Feichko, 213 F.3d 586, 591 (10th
Cir. 2000), cert. denied, 531 U.S. 1074 (2001). See also Albarado v. S. Pac. Transp.
Co., 199 F.3d 762, 765 (5th Cir. 1999) (explaining that it had "consistently held that
. . . § 1445(a) is not jurisdictional" and that "wrongful removal is a procedural defect,
which may be waived if not timely asserted"); Carpenter v. Baltimore & O.R. Co., 109
F.2d 375, 379-80 (6th Cir. 1940). And the Fourth Circuit has held that because the
question of whether the Longshore Act applies to a work related injury is exclusively
a federal question that cannot be resolved by state courts, it had jurisdiction to review
the claim in spite of § 1445 and § 1447. Shives v. CSX Transp., Inc. (In re CSX
Transp., Inc.), 151 F.3d 164, 167 (4th Cir.), cert. denied, 525 U.S. 1019 (1998).

       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.

                                           B.

       After determining that we have jurisdiction to review the district court's remand
order, we must now turn to the merits of the district court's decision remanding the

                                          -7-
case to state court because Demay's injury was covered by the FELA, not the
Longshore Act.

       To determine if an injured employee is covered by the Longshore Act, we look
to whether the injured employee was working: (1) at a maritime situs; and (2) in a
maritime status. See Caputo, 432 U.S. at 264-65 ("The 1972 Amendments [to the
Longshore Act] thus changed what had been essentially only a 'situs' test of eligibility
for compensation to one looking to both the 'situs' of the injury and the 'status' of the
injured."). To meet the situs requirement of the Longshore Act, the injury must occur
"upon the navigable waters of the United States (including any adjoining pier, wharf,
dry dock, terminal, building way, marine railway, or other adjoining area customarily
used by an employer in loading, unloading, repairing, dismantling, or building a
vessel)." 33 U.S.C. § 903(a). Both parties agree that the situs requirement was met,
as the injury occurred at Lamberts Point.

       The status test is occupational, although Congress has failed to specify exactly
what types of jobs meet the status requirement of the Longshore Act. In 33 U.S.C.
§ 902(3), Congress defined, for the purposes of the Longshore Act, "employee" as
"any person engaged in maritime employment, including any longshoreman or other
person engaged in longshoring operations, and any harbor-worker including a ship
repairman, shipbuilder, and ship-breaker," but the statute excluded various other
specific groups of individuals if they were covered by a state workers' compensation
law. Additionally, the Supreme Court has held that land-based activity, including
work done by railway employees, can qualify for coverage under the Longshore Act.
See Chesapeake & O. Ry. Co. v. Schwalb, 493 U.S. 40, 48 (1989) (holding that
railway employees engaged in cleaning spilled coal during the loading process were
covered by the Longshore Act).

       According to the Supreme Court, Congress did not necessarily want the focus
to be on the exact activity the employee was engaged in at the time of the injury, but

                                          -8-
rather the employee's occupation. See Caputo, 432 U.S. at 273 ("Both the text and the
history demonstrate a desire to provide continuous coverage throughout their
employment to these amphibious workers who, without the 1972 amendments, would
be covered only for part of their activity."). "[W]hen Congress said it wanted to cover
'longshoremen,' it had in mind persons whose employment is such that they spend at
least some of their time in indisputably longshoring operations and who, without the
1972 amendments, would be covered for only part of their activity." Id. The Supreme
Court explained that the closest Congress came to defining the status requirement is
the "typical example" of shoreward coverage contained in the Committee Reports. Id.
at 266. "The example clearly indicates an intent to cover those workers involved in
the essential elements of unloading a vessel—taking cargo out of the hold, moving it
away from the ship's side, and carrying it immediately to a storage or holding area."
Id. at 266-67. "The example also makes it clear that persons who are on the situs but
are not engaged in the overall process of loading and unloading vessels are not
covered." Id. at 267. In addition to discussing the "typical example" provided by
Congress, in a similar situation the Supreme Court explained that to meet the status
requirement, the job must involve loading or unloading. See Schwalb, 493 U.S. at 46
("[T]he maritime employment requirement as applied to land-based work other than
longshoring . . . is an occupational test focusing on loading and unloading. Those not
involved in those functions do not have the benefit of the [Longshore] Act.") (citing
Herb's Welding, Inc. v. Gray, 470 U.S. 414, 424 (1985)).

      According to Norfolk Southern, "[t]he coal loading process is initiated when a
permit is issued by Norfolk Southern for the ship describing the tonnage and number
of coal cars for the vessel." (Appellant's Br. at 6.) However, in a case involving a
similar procedure for loading coal onto vessels, the Supreme Court stated that, "[t]he
loading process begins when a hopper car is rolled down an incline to a mechanical
dumper which is activated by trunnion rollers and which dumps the coal through the
hopper onto conveyor belts." Schwalb, 493 U.S. at 42-43. Here, the loaded cars are
brought into the Barney Yard, spotted, and secured. After that, other workers, not

                                         -9-
Demay or any of his crew, release the cars and send them down the incline to the
rotary dumpers, which rotate the coal cars 180 degrees and dump the coal onto
conveyors that move the coal onto Pier 6 for loading into the holds of coal ships. The
process here is very similar to that in Schwalb, and so the Supreme Court's
explanation as to when the loading process begins guides us. Moreover, the Fourth
Circuit has relied on the Supreme Court's statement in determining whether an injury
was covered under the Longshore Act in another case involving an injury that
occurred at Lamberts Point. Etheridge v. Norfolk & W. Ry., 9 F.3d 1087, 1090 (4th
Cir. 1998). In that instance, the injury occurred to someone initiating the descent of
railroad cars. When considering the injury, the Fourth Circuit explained that, "[w]e
believe that [the Supreme Court's statement regarding when the loading process
begins] makes plain that a brakeperson in the Barney Yard, who initiates the descent
of railroad cars to the pier, begins the loading process and, therefore, engages in
employment that is essential to the loading process." Id. Here, in contrast, Demay's
crew did not initiate the descent of railroad cars but instead worked with the cars
before the loading process. He and his crew were spotting and securing the rail cars
loaded with coal in the Barney Yard, before they were rolled down the incline to the
dumpers. Thus, applying the Supreme Court's analysis, because Demay's duties were
completed before the cars were released and began their descent, he was not involved
in the loading process. Hence, his job was not covered under the "status" requirement
of the Longshore Act. Additionally, even beyond the activity he was engaging in at
the time of his injury, there is nothing in the record to indicate that his employment
was such that he spent "at least some of [his] time in indisputably longshoring
operations." See Caputo, 432 U.S. at 273.

      Norfolk Southern argues that Demay's injury is covered by the Longshore Act
because his actions were "essential or integral" to the loading process because
"[s]witching the railroad cars into Barney Yard on to the correct tracks in the correct
sequence is 'essential and integral' to the overall loading process." (Appellant's Br. at
31.) See, e.g., Schwalb, 493 U.S. at 46 (explaining that in Caputo, the Court held that

                                          -10-
the Longshore Act "covered all those on the situs involved in the essential or integral
elements of the loading or unloading process"). However, the activities must also be
actually involved in the loading process itself. For example, an individual working
within the site who arranges the employee work schedules could be considered
"essential or integral" to the overall loading process because without an organized
work schedule no one would know when to come to work and the loading would
never occur. However, to conclude that this person meets the "status" requirement of
the Longshore Act is plainly ridiculous. While the Supreme Court did hold that
janitors (whose work at times took them elsewhere on Lamberts Point) were covered
by the Longshore Act, see id. at 48, they were injured while cleaning up coal that had
spilled at the dumper location during the loading process. Demay's duties were
completed before the loading process began, he did not meet the status requirement
of the Longshore Act, and therefore his injury is not covered by the Longshore Act.
His claim is brought under the FELA, and the district court did not err in remanding
the case to the state court. Thus, we respectfully reject Norfolk Southern's argument
that we should issue a writ of mandamus directing the DOL to resolve Demay's claim.

                                         III.

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




                                         -11-
