Potential Game Changer: Admiralty Jurisdiction Law Serves As A Basis For Removal
Earlier this week, the Seventh Circuit issued a ruling in Lu Junhong v. Boeing Co. that defendants can remove cases to federal court under admiralty jurisdiction alone. The ruling may very well change the dynamics of mass tort filings in so-called “magnet jurisdictions” like Madison County and Cook County.
Junhong involved a group of Cook County cases from Asiana Airlines Flight 214. Two years ago, that Boeing 777 crashed into the seawall at San Francisco International Airport. The plane’s tail broke off, 49 persons suffered serious injuries, and three of the passengers died (the other 255 passengers and crew aboard suffered only minor or no injuries). Passengers sued Boeing in Illinois state court, alleging the plane’s systems were defective and contributed to the pilots’ errors. Boeing then removed the lawsuits to federal court, asserting two sources of jurisdiction: federal officer under § 1442 and general admiralty under § 1333.
[A]dmiralty jurisdiction exists when an injury suffered on land was caused by a vessel (or plane) on (or over) navigable water, if the cause bears a substantial relationship to traditional maritime activity.
Under the federal officer statute, a defendant may remove cases when “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1). In Junhong, the Seventh Circuit rejected Boeing’s argument that self-reporting or certifying made it a federal officer: “self-reporting enables the IRS to have a smaller workforce, just as Boeing’s procedures cut the FAA’s payroll, but if taxpayers (and lawyers who certify that their briefs comply with rules) are not covered by §1442, neither is Boeing.”
Boeing’s second basis, general admiralty jurisdiction under § 1333 was however, successful. As the Seventh Circuit explained, admiralty jurisdiction exists when an injury suffered on land was caused by a vessel (or plane) on (or over) navigable water, if the cause bears a substantial relationship to traditional maritime activity. Boeing alleged that the plane crossed the Pacific Ocean, a traditional maritime activity, and the cause of the accident likely occurred over the water. And those allegations satisfied admiralty jurisdiction.
The Seventh Circuit added two critical points:
- Disputed allegations are enough: “Jurisdictional allegations control unless it is legally impossible for them to be true (or to have the asserted consequences).”
- Admiralty jurisdiction is enough: Admiralty jurisdiction provides a basis for removal under § 1333(1), even “absent an independent basis for federal jurisdiction.”
Indeed, on the second point, the Seventh Circuit split the circuits and disagreed with Plaintiffs’ argument under Oklahoma ex rel. Edmondson v. Magnolia Marine Transp. Co., 359 F. 3d 1237, 1241 (10th Cir. 2004) (“[c]ourts have consistently interpreted the ‘savings clause’ to preclude removal of maritime actions brought in state court and invoking a state law remedy, provided there is no independent basis for removal” such as the presence of a federal question or diversity of citizenship”); Morris v. TE Marine Corp., 344 F. 3d 439, 444 (5th Cir. 2003) (same); In re Chimenti, 79 F. 3d 534, 537 (6th Cir. 1996) (same); Servis v. Hiller Sys. Inc., 54 F.3d 203, 207 (4th Cir. 1995) (same).
Junhong shows how defendants can remove cases under federal officer jurisdiction, 28 U.S.C. § 1442, or general admiralty jurisdiction, 28 U.S.C. § 1333. Increasingly, federal officer jurisdiction has been a basis for removal by defendants in asbestos cases. E.g., Cuomo v. Crane Co., 771 F.3d 113 (2d Cir. 2014); Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014); Ruppel v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012). There is now another way to remove Navy asbestos cases: general admiralty jurisdiction under Junhong.