In re NORFOLK SOUTHERN RAILWAY COMPANY, Petitioner. Gilbert Bynum, Plaintiff-Appellee, v. Norfolk Southern Railway Company, Defendant-Appellant.
Nos. 13-2112, 13-2127
United States Court of Appeals, Fourth Circuit
Argued: May 15, 2014. Decided: June 23, 2014.
Finally, we reject Ahumada‘s argument that he adequately pleaded a claim for conspiracy to defraud the government. See
Neither the production allegation nor the rebate allegation establishes a claim for an FCA conspiracy. In neither case does Ahumada adequately allege that Weyerhaeuser acted with the purpose of defrauding the government.10 And, to the extent that these allegations plead agreements at all, Ahumada does not identify who at Weyerhaeuser entered them, when he or she did so, or what Weyerhaeuser sought to gain. The conspiracy claim therefore fails to meet even the basic plausibility standard of Rule 8(a), much less the more stringent particularity requirement of Rule 9(b). Cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (“[A] conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.“).
In sum, we hold that Ahumada‘s second amended complaint fails to adequately plead any FCA claim against Weyerhaeuser. In conjunction with our previous determination that the district court lacked subject-matter jurisdiction over the claims against the other appellees, we agree with the district court that Ahumada‘s attempt to amend his pleading was futile. The district court therefore did not err in denying Ahumada leave to amend and dismissing his action.
V.
For the reasons given, we affirm the district court‘s judgment.
AFFIRMED.
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.
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.
TRAXLER, Chief Judge:
I.
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
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, 110 S.Ct. 381, 107 L.Ed.2d 278 (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 (4th Cir. 1998)). On this basis, Norfolk Southern maintained that removal was proper under
On July 15, 2013, Bynum moved to remand the matter to state court. Bynum cited
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
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
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
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
II.
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.”
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,
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 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” § 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.
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 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 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“),
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
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) 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 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.
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.’
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 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
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 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
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 id. 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 included in
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 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, 127 S.Ct. 2411 (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.”
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 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.
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 thus, Bynum‘s FELA claim continues to exist and the state court would have jurisdiction to adjudicate that claim, see
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.
UNITED STATES of America, Plaintiff-Appellee, v. Eddie Wayne LOUTHIAN, Sr., Defendant-Appellant.
No. 13-4231.
United States Court of Appeals, Fourth Circuit.
Argued: March 18, 2014. Decided: June 23, 2014.