Seventh Circuit Allows Removal of Admiralty Suit
Seventh Circuit Allows Removal of Admiralty Suit
2011 Amendments to 1441 Allow Removal
Tranoceanic Flight Within Admiralty Jurisdiction if Cause of Crash on
Land Occurs Over Water
Lu Junhong v. Boeing Co., 2015 U.S. App. LEXIS 11733, 2015 WL 4097738 (7th Cir., July 8, 2015)
By: Arthur Crais
Shortly more than two years after a Boeing jet crashed into a seawall at San Francisco Airport (July 6, 2013) injuring numerous passengers and killing three, the U.S. Court of Appeals for the Seventh Circuit on July 8, 2015 issued an opinion reversing the remand by the trial judge. “Boeing removed these suits to federal court, asserting two sources of jurisdiction: admiralty, plus federal officials' right to have claims against them resolved by federal courts. 28 U.S.C. §§ 1333, 1442. The Panel on Multidistrict Litigation then decided that these suits, too, should be transferred to California to participate in the consolidated pretrial proceedings. But before receiving the Panel's formal directions to transfer the suits to California, the district court remanded them for lack of subject-matter jurisdiction.”As Boeing alleged jurisdiction under 28 U.S.C. Sec. 1442, (federal officer’s statute) which allows removal of certain suits against federal officers, review of an order of remand was reviewable under 28 U.S.C. Sec. 1447(d) which states: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title [28 USCS § 1442 or 1443] shall be reviewable by appeal or otherwise.” Hence, the appeal was proper but that removal was not supported by Sec. 1442. This, however, did not end the inquiry.The trial court remanded those suits which were removed on the basis that the accident did not fall within admiralty jurisdiction holding “that admiralty jurisdiction is available only when an accident becomes inevitable while the plane is over water.” (2015 U.S. App. LEXIS 11733 at 3) Once removal is made pursuant to Sec. 1442, the Court of Appeal may “consider all of the legal issues entailed in the appeal.” (2015 U.S. App. LEXIS 11733 at 14)The inevitability standard adopted by the trial court lacks any support in the admiralty jurisprudence of the Supreme Court or any federal Court of Appeals. Nonetheless, relying on a report by the NTSB, the court stated that Boeing could “show that this accident was caused by, or became inevitable because of, events that occurred over navigable water.” (2015 U.S. App. LEXIS 11733 at 22) “If accidents that occur because of a cause over the water are treated as on the water for the purpose of this statute, it is hard to see any stopping point—provided that the accident meets the functional requirements articulated in Grubart.” (2015 U.S. App. LEXIS 11733 at 24) The transoceanic flight is the equivalent of ocean transport and also satisfies the “traditional maritime activity standard.”Finally, the court addressed whether the state maritime claims could be removed under 28 U.S.C. Sec. 1441(b). Plaintiffs maintained that maritime suits filed in state court could not be removed. The Court of Appeal remarked, however, that they failed to state why. The panel then turned its attention to Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 [1959]) and stated that the decision was based on the prohibition in 1441(b) to a home state defendant removing “any other action” (not original jurisdiction). “That's why it mattered in Romero whether a maritime case under §1333(1) counted as one arising under federal law (sentence one) or as an "other" action within federal jurisdiction (sentence two). The Court held in Romero that it was an "other" action. If the language had remained unchanged, it would matter to our case as well, for Boeing's headquarters are in Illinois.” (2015 U.S. App. LEXIS 11733, at 29)The panel acknowledged that “it could be argued” that the “savings to suitors” clause prohibits removal. But, the plaintiffs “have not mentioned the saving-to-suitors clause, [and] do not make such an argument.” (2015 U.S. App. LEXIS 11733 at 30) “If the saving-to-suitors clause allows them to stay in state court even after the 2011 amendment, they are free to waive or forfeit that right—which given the scope of §1333(1) concerns venue rather than subject-matter jurisdiction. Boeing therefore was entitled to remove these suits to federal court.” (2015 U.S. App. LEXIS 11733 at 30)The order of remand was reversed and rescinded with an order to transfer the cases to the Northern District of California in the multidistrict litigation.
