                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 91-3676




IN RE:   MEDSCOPE MARINE LIMITED and
         H. GLAHR & CO.,

                                               Petitioners.




     On Petition for Writ of Mandamus to the United States
       District Court for the Middle District of Louisiana
                         (August 31, 1992)


 Before POLITZ, Chief Judge, WILLIAMS and DUHÉ, Circuit Judges.



POLITZ, Chief Judge:

     Medscope Marine Limited and H. Glahr & Company petition for a
writ of mandamus asking that we vacate an order of the district

court which remanded this case to state court.   Concluding that we

are without jurisdiction we dismiss the petition.




                            Background

     Roberto Geguera died while on the high seas.   The plaintiffs-

respondents, Charaito Bautista Geguera and Mamerto Geguera, filed

wrongful death claims in Louisiana state court, invoking the Jones
Act,1 the Death on the High Seas Act (DOHSA),2 and general maritime

law.       Medscope and Glahr removed the case, asserting that Mamerto

Geguera had a separate and independent claim under DOHSA which

would be removable if sued upon alone.                 The plaintiffs timely

sought remand, contending that there was no removal jurisdiction

over DOHSA claims. The district court granted the motion to remand

on that basis and denied a subsequent motion for an interlocutory

appeal certification under 28 U.S.C. § 1292(b).                  The instant

application for writ of mandamus followed.



                                    Analysis

       Before us is an order of remand based on a timely motion under

28 U.S.C. § 1447(c) asserting a defect in removal procedure other

than       lack   of   subject   matter       jurisdiction.    Our    threshold

consideration is whether we have jurisdiction to entertain this

application for a writ of mandamus.

       In     prior    decisions   we     have    determined   that   we   have

jurisdiction to review remand orders based upon untimely remand

motions, finding that to be a rare exception to the general rule of

nonreviewability.3        In those cases we suggested in dicta4 that a

       1
               46 U.S.C. App. § 688.

       2
               46 U.S.C. App. §§ 761-767.

       3
          McDermott Int'l v. Lloyd's Underwriters of London, 944
F.2d 1199 (5th Cir. 1991); In re Shell Oil Co., 932 F.2d 1518 (5th
Cir. 1991); In re Shell Oil Co., 932 F.2d 1523 (5th Cir. 1991);
Baris v. Sulpicio Lines, Inc., 932 F.2d 1540 (5th Cir. 1991); In re
Digicon Marine, Inc., 966 F.2d 158 (5th Cir. 1992).

                                          2
remand    order     based    upon     a     timely   remand     motion    would   be

nonreviewable because of the prohibition contained in section

1447(d) which provides that:

          An order remanding a case to the State court from
     which it was removed is not reviewable on appeal or
     otherwise, . . .5

     In Thermtron Products, Inc. v. Hermansdorfer6 the Supreme

Court     limited      the     broad         nonreviewability       language      of

section   1447(d)     to     remand       orders   based   on   section    1447(c).

Pre-1988 section 1447(c) provided, in relevant part, that:

          If at any time before final judgment it appears that
     the   case  was   removed   improvidently   and   without
     jurisdiction, the district court shall remand the
     case. . . .

In London v. United States Fire Ins. Co.7 we held that either

"improvident removal" or "lack of [subject matter] jurisdiction" is

a proper, independent basis for remand under section 1447(c).                     As

amended in 19888 section 1447(c) provides, in relevant part, that:



     4
          McDermott Int'l, 944 F.2d at 1201 n.1; In re Shell Oil
Co., 932 F.2d at 1520 n.5; In re Shell Oil Co., 932 F.2d at 1527;
Baris, 932 F.2d at 1543; In re Digicon Marine, Inc., 966 F.2d at
160 n.1.

     5
          Added by May 24, 1949, ch. 139, § 84, 63 Stat. 102.
Section 1447(d) has not been amended since.

     6
           423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976).

     7
           531 F.2d 257 (5th Cir. 1976).

     8
           P.L. 100-702, Title X, § 1016(c), 102 Stat. 4670.


                                            3
          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. . . .

The resolution of the jurisdictional question in the instant case

turns    on   the   congressional   intent   in   the   1988   amendment   to

section 1447(c).

     The second sentence of section 1447(c) commands the remand

upon discovery of lack of subject matter jurisdiction, reflecting

the established rubric that a federal court has the continuing

obligation to assure itself of its power to act in a proceeding

before it, whether the issue is raised by the parties or by the

court on its own motion.9

     The first sentence of section 1447(c), however, requires a

more considered reflection.         Aided by the limited legislative

history of the 1988 amendment to section 1447(c),10 we conclude that

the intent of Congress was to impose a 30-day time limit for a

remand motion based upon "any defect in removal procedure."                The

relevant legislative history informs that:

          Section 1447(c) now appears to require remand to
     state court if at any time before final judgment it
     appears that the removal was improvident. So long as the
     defect in removal procedure does not involve lack of
     federal subject matter jurisdiction, there is no reason
     why either State or Federal courts, or the parties should

     9
          Save The Bay, Inc. v. United States Army, 639 F.2d 1100
(5th Cir. 1980).

    10
          H.R. Rep. No. 889, 100th Cong., 2d Sess. 1988, reprinted
in 1988 USCC&AN 5982, 6031-6034.


                                     4
     be subject to the burdens of shuttling a case between two
     courts that each have subject matter jurisdiction. There
     is also some risk that a party who is aware of a defect
     in removal procedure may hold the defect in reserve as a
     means of forum shopping if the litigation should take an
     unfavorable turn. The amendment provides a period of
     30 days within which remand must be sought on any ground
     other than the lack of subject matter jurisdiction. The
     amendment is written in terms of "removal procedure" in
     order to avoid any implication that remand is unavailable
     after disposition of all federal questions leaves only
     State law questions that might be decided as a matter of
     ancillary or pendent jurisdiction or that might instead
     be remanded.11

     Thus informed, we are persuaded that section 1447(c) is a mere

reconstitution of the existing statute and jurisprudence, with the

addition of a strict time limitation on the privilege of filing

remand motions.    The legislative history addressed several core

concerns relating to an unbridled right to seek a remand:           (1) a

party's right to seek remand at any time before final judgment on

any ground other than the lack of subject matter jurisdiction;

(2) the burden on state and federal courts; (3) the burden on the

parties; and (4) the potential sandbagging should the federal

litigation take an unfavorable turn.        All of these concerns are

ameliorated by the imposition of a 30-day time limit for the filing

of the remand motions.      Thus, brief that it is, the legislative

history   of   section    1447(c)   convinces   us   that   the   "removed

improvidently" language of pre-1988 section 1447(c) was replaced,

without intent to change the meaning, with the "defect in removal

procedure" in the current section 1447(c).

     Having thus concluded that section 1447(c) is a specific,

     11
           Id. at 6033.


                                     5
time-limited reconstitution of the earlier statute, in light of

intervening jurisprudence, we may now address the jurisdictional

question, guided by controlling Supreme Court precedent.         The

Thermtron court held that section 1447(d)

     prohibits review of all remand orders issued pursuant to
     § 1447(c) whether erroneous or not and whether review is
     sought by appeal or by extraordinary writ . . . If a
     trial judge purports to remand a case on the grounds that
     it was removed 'improvidently and without jurisdiction,'
     his order is "unreviewable."12

We have consistently followed Thermtron's teachings.     The cases

cited in footnotes 3 and 4, supra, involved orders of remand based

upon untimely motions to remand for a defect in removal procedure.

Because such a remand order is not a section 1447(c) remand, review

was not precluded by section 1447(d) or Thermtron.

     In the instant case, the district court remanded because a

DOHSA case may not be removed to federal court.   State and federal

courts have concurrent original jurisdiction over DOHSA cases;13

thus, the case before us could not be remanded for lack of subject

matter jurisdiction.     If DOHSA cases are not removable, then

removal of a DOHSA case necessarily constitutes a defect in the

manner by which the DOHSA case was brought before the federal

court.    This would be a defect in the removal procedure,14 waived

     12
          Thermtron, 423 U.S. at 343, 96 S.Ct. at 589, 46 L.Ed.2d
at 549 (emphasis ours).

   13
          Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106
S.Ct. 2485, 91 L.Ed.2d 174 (1986).

     14
           Baris, 932 F.2d at 1343.


                                 6
absent a timely motion to remand.         On the other hand, if DOHSA

cases are removable, then the remand order premised upon a defect

in removal procedure, although erroneous, would not be reviewable

under Thermtron.15   We have pretermitted the question of DOHSA-case

removability on a number of prior occasions.16            Because of the

Thermtron   teaching   that     a   section   1447(c)   remand   order   is

nonreviewable, "whether erroneous or not," we are not now required

to solve the DOHSA removability conundrum.17

     We conclude that we are without jurisdiction to entertain the

instant application for writ of mandamus to vacate an order of

remand based upon a timely section 1447(c) motion raising a defect

in the removal procedure.

     DISMISSED FOR LACK OF APPELLATE JURISDICTION.




     15
            Thermtron, supra.

     16
            Baris, 932 F.2d at 1543 n.3.

     17
          See Filho v. Pozos Int'l Drilling Services, Inc., 662
F.Supp. 94 (S.D.Tex. 1987) (for a persuasive, well-reasoned, and
scholarly opinion concluding that DOHSA cases are nonremovable).


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