Academic journal article Harvard Law Review

Admiralty Law - Removal - Seventh Circuit Holds That 2011 Amendment to 28 U.S.C. S. 1441 Permits Removal Based Solely on Admiralty Jurisdiction

Academic journal article Harvard Law Review

Admiralty Law - Removal - Seventh Circuit Holds That 2011 Amendment to 28 U.S.C. S. 1441 Permits Removal Based Solely on Admiralty Jurisdiction

Article excerpt

ADMIRALTY LAW--REMOVAL--SEVENTH CIRCUIT HOLDS THAT 2011 AMENDMENT TO 28 U.S.C. [section] 1441 PERMITS REMOVAL BASED SOLELY ON ADMIRALTY JURISDICTION.--Lu Junhong v. Boeing, 792 F.3d 805 (7th Cir.), reh'g en banc denied, No. 14-1825 (7th Cir. Aug. 10, 2015).

Courts have historically interpreted federal jurisdictional statutes to bar the removal of admiralty claims from state courts. (1) Recent statutory amendments have complicated the matter. Last year, in Lu Junhong v. Boeing Co., (2) the Seventh Circuit ruled that Boeing could remove claims arising from the July 2013 crash of Asiana Airlines Flight 214 based on admiralty jurisdiction alone. (3) By holding that changes to 28 U.S.C. [section] 1441 passed in the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (4) permit removal of admiralty cases without another jurisdictional basis, Judge Easterbrook handed a victory to the minority view in an ongoing battle in the district courts. Given the procedural requirements for review of a removal decision, it may be some time before another circuit court decides the same issue. If more district courts follow the Seventh Circuit's lead, a flaw in the current test for admiralty jurisdiction may become more acute, potentially strengthening the case for a return to the traditional test for maritime jurisdiction.

On July 6, 2013, Asiana Airlines Flight 214 crashed into a seawall while landing in San Francisco after a trans-Pacific flight. (5) The tragedy killed three and injured dozens; many survivors filed lawsuits claiming that the Boeing 777 aircraft was defective. (6) While all federal claims were consolidated in the Northern District of California, some plaintiffs filed in the courts of Boeing's home state of Illinois. (7) Claiming that federal courts had subject matter jurisdiction over the case under both federal officer (8) and admiralty jurisdiction, (9) Boeing removed to federal court. (10)

In an unreported opinion in the Northern District of Illinois, Judge Harry D. Leinenweber remanded to the Illinois state court for lack of federal subject matter jurisdiction. The court said that Boeing had to show that the alleged tort (1) occurred on or over a navigable waterway and (2) had a "connection" to a traditional maritime activity. (11) The court thought that the crash had to have become inevitable over water to satisfy the first element, and ruled that it became inevitable only on impact. (12) The court then rejected the argument that federal officer jurisdiction existed. (13)

The Seventh Circuit reversed and remanded the case to the district court with instructions to rescind the remand order and transfer the case to the Northern District of California. (14) Writing for the panel, Judge Easterbrook (15) ruled that Boeing was entitled to remove the cases under admiralty jurisdiction. (16) First, the court noted that while 28 U.S.C. [section] 1447(d) prevents appellate review of most remand decisions, it does permit review of orders based on [section] 1442 federal officer jurisdiction. (17) The court then promptly rejected Boeing's argument for such jurisdiction. (18) Though Boeing participated in the airline industry's regulatory scheme by self-certifying compliance, it was never "acting under [a federal] officer." (19) However, the court ruled that because the [section] 1447(d) exception granted appellate review of the "order remanding a case," (20) the court retained appellate review of the entire order--including its analysis of admiralty jurisdiction. (21) The court said that the decision to review admiralty jurisdiction was "entirely textual" (22): it was based on use of the word "order" in [section] 1447(d) rather than on pendent jurisdiction. (23)

Reviewing the district court's admiralty jurisdiction ruling, the Seventh Circuit questioned the inevitability requirement's validity. The court noted the test "lack[ed] a provenance" in any appellate court decision and, even if valid, was not relevant to the outcome. …

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