Unfortunately, the Fifth Circuit decided on August 14, 2013 in Ernewayn v. Home Depot that it lacked appellate jurisdiction to entertain Home Depot’s appeal of a remand order. The Fifth Circuit did not hold (as has been reported and suggested elsewhere) that nonsubscriber cases may not be removed because of 28 U.S.C. § 1445. That statute precludes the removal of cases arising under a workers’ compensation law. The Court of Appeals held only that § 1445, if it applies, constitutes a “procedural defect” in the removal. The Court then found that the district court had applied § 1445 (which was disputed) and concluded that it therefore lacked jurisdiction to consider Home Depot’s appeal under 28 U.S.C. § 1447. Section 1447 precludes appeal of district court remand orders that are based upon a lack of jurisdiction or a procedural defect regardless of whether the district court was correct in its determination.
In the authors’ opinions, Texas nonsubscriber cases do not “arise under” the Texas Workers’ Compensation Act and the Fifth Circuit did not hold otherwise in Ernewayn. Section 1445 therefore does not preclude removal. Several recent decisions support this view including: Harrington v. Home Depot, Morris v. Home Depot, and Judge Hittner’s very succinct order in Felder v. Home Depot. Further, the Fifth Circuit’s prior precedent strongly suggests that if the Fifth Circuit ever does get around to addressing the merits, that Court will also conclude that § 1445 does not prevent the removal of nonsubscriber cases. Home Depot’s Brief and Reply Brief are linked in Word format for the convenience of any nonsubscriber facing this issue.
In short, the decision in Ernewayn will not affect our removal recommendations moving forward. The district court’s opinion is an anomaly and it is unfortunate that the Fifth Circuit did not take the opportunity presented to clarify the law as it relates to this important right.