IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
DORA GARCIA, Individually, and as Representative
Of the Estate of Bladimir Garcia and as next
Of Julianna Ruby Garcia and Yesenia Michelle
Minor Children; Jose Garcia Vasquez; and Alba
Appeal from the United States District Court
for the Southern District of Texas
June 19, 2001
Before HIGGINBOTHAM and BENAVIDES, Circuit
Judges and DUPLANTIER(1), District Judge.
BENAVIDES, Circuit Judge:
The Appellant, Amfels, Inc., appeals the district
court's order granting Appellees' motion for attorneys' fees and expenses
incurred in prosecuting their motion to remand under § 1447(c). This
case arose out of an accident which occurred on April 22, 1999, at the
Amfels shipyard at the Port of Brownsville, Texas. Tragically, Bladimir
Garcia, during the course of his duties, received an electric shock and
The Appellees, the Garcias, filed suit in
Texas state court asserting Texas state law claims for negligence and premises
liability. Their petition made no reference to the Longshore and Harbor
Worker's Compensation Act (LHWCA) or any other federal statute, regulation,
law, or question. In their answer, Amfels raised the LHWCA as an affirmative
defense, arguing the suit was preempted. Amfels then removed the case to
federal court on the basis of federal question jurisdiction. The Garcias
filed a motion to remand the case to state court. Relying upon our holding
in Aaron v. National Union Fire Ins. Co. of Pittsburg [sic],
Pa., 876 F.2d 1157 (5th Cir. 1989) that a LHWCA defense
does not create federal subject matter jurisdiction, the district court
granted the Garcias' motion to remand.
Section 1447(c) authorizes the district court
to "require payment of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal."(2)
28 U.S.C. § 1447. This Court has appellate jurisdiction to review
the imposition of costs and fees even though 28 U.S.C. § 1447(d) provides
that a remand order is not reviewable by appeal or otherwise. Miranti
v. Lee, 3 F.3d 925, 927-28 (5th Cir. 1993). Central to the
determination of whether attorneys' fees should be granted is the propriety
of the defendant's decision to remove.(3)
Id. at 928. In this case, the district court ruled that because
Fifth Circuit law explicitly prevented removal based on a LHWCA defense,
Defendant's removal of the case was frivolous. The district court ordered
Amfels to pay $4,658.62 in attorneys' fees and expenses. The decision of
the district court to award attorneys' fees is reviewed for an abuse of
discretion. Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 291 (5th
Cir. 2000). Finding no abuse of discretion, we AFFIRM the judgment of the
Appellant contends that in light of the apparent
conflict between our holdings in Atkinson v. Gates, McDonald & Co.,
838 F.2d 808 (5th Cir. 1988) and Aaron v. National Union
Fire Ins. Co. of Pittsburg, Pa., 876 F.2d 1157 (5th Cir.
1989), the district court abused its discretion by imposing costs and fees.
In Aaron, a unanimous panel of this Court held that the LHWCA does
not create federal subject matter jurisdiction when raised as a defense.
Aaron, 876 F.2d at 1161-64. Appellant contends that Aaron
runs contrary to our prior holding in
Atkinson, wherein this Court
relied upon the exclusivity provision of § 905(a) of the LHWCA to
hold that the LHWCA was preemptive of the plaintiff's state law claims
and provided the plaintiff's exclusive remedy. 838 F.2d at 809-810. Atkinson,
however, was a diversity case and did not involve removal based on federal
question jurisdiction. Atkinson therefore did not resolve the issue
relevant to this appeal - that is, whether the LHWCA provides a basis for
federal jurisdiction when raised as a defense.
Ultimately, Appellant is unable to cite any
Fifth Circuit case, nor any persuasive authority from another circuit,
supporting removal. Appellant therefore resorts to arguing that Aaron
was wrongly decided.(4) Appellant's argument
that Aaron was wrongly decided is as misplaced as it is unpersuasive. We
do not have jurisdiction to review the district court's remand order. See
28 U.S.C. § 1447(d). The sole issue on appeal is whether the district
court abused its discretion in imposing costs and fees upon Appellant pursuant
to § 1447(c).
Despite Appellant's attempt to conjure up
a conflict in this Court's caselaw, there is no question that the LHWCA
does not create federal subject matter jurisdiction supporting removal.
Aaron v. National Union Fire Ins. Co. of Pittsburg, Pa., 876 F.2d
1157 (5th Cir. 1989); see also Hart v. Bayer Corp.,
199 F.3d 239, 245 (5th Cir. 2000); Griffis v. Gulf Coast
Pre-Stress Co., Inc., 850 F.2d 1090, 1092 (5th Cir. 1988).
The LHWCA is a preemption defense that needs to be raised in state court.
Presented with controlling Fifth Circuit precedent and precedent from its
own district imposing costs and fees for removal under the LHWCA, the district
court clearly did not abuse its discretion in granting Appellees' motion
for attorneys' fees and costs in connection with the motion to remand.
See Masters v. Swiftships Freeport, Inc., 867 F.Supp. 555, 558-59
(S.D. Tex. 1994) (imposing costs and fees upon finding that Defendant's
removal under the LHWCA was frivolous and utterly groundless). Accordingly,
the judgment of the district court is AFFIRMED.
1. District Judge of the
Eastern District of Louisiana, sitting by designation.
2. Section 1447 (c) provides
A motion to remand the 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). If at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be remanded. An
order remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.
A certified copy of the order of remand shall be mailed by the clerk to
the clerk of the State court. The State court may thereupon proceed with
3. The commentary accompanying
the 1988 revision to § 1447 states that:
the amendment of subdivision (c) now authorizes
the court to add "actual expenses, including attorney fees", should it
find that it was improper for the defendant to remove the case. The matter
is left to the court's discretion, to be exercised based on the nature
of the removal and the nature of the remand.
David D. Siegel, Commentary on 1988 Revision
to 28 U.S.C. § 1447 (West Supp. 1993).
4. Before the district
court, Appellant did not defend the removal as a good faith effort to obtain
a change of existing law.