Airplane Suits Removable under Admiralty Jurisdiction
By Onika K. Williams, Litigation News Contributing Editor – November 17, 2015
An airplane crash on land does not preclude admiralty jurisdiction and may provide removal grounds. The appellate court in Junhong v. Boeing Co. held that federal courts could hear lawsuits filed in state courts involving a plane that crashed into a seawall. The decision shows how defendants can successfully remove airplane suits to federal court.
Plane Crash Leads to Multiple Suits
On July 6, 2013, a Boeing 777 plane, operated by Asiana Airlines, hit the seawall that separates the Pacific Ocean from the end of a runway at San Francisco International Airport. The plane’s tail broke off, three passengers died, and 49 people were seriously injured. The flight had crossed the ocean from Seoul, Korea, and the National Transportation Safety Board (NTSB) concluded that the principal cause of the accident was pilot error.
Lawsuits against Boeing and Asiana Airlines followed in state and federal courts. The federal cases were consolidated by the United States Judicial Panel on Multidistrict Litigation in the U.S. District Court for the Northern District of California under 28 U.S.C. § 1407(a).
Some passengers sued Boeing in state courts of Illinois. Boeing removed these cases to the U.S. District Court for the Northern District of Illinois, asserting federal officer jurisdiction under 28 U.S.C. § 1442(a)(1), and admiralty jurisdiction under 28 U.S.C. 1331(1). Section 1442(a)(1) allows removal for state court actions brought against the United States, or its agencies or officers, “for or relating to any act under color of such office.” However, before receiving formal directions from the panel on multidistrict litigation to transfer the cases to California, the Illinois district court remanded the cases.
The Illinois district court decided that Boeing did not act as a federal officer and that admiralty jurisdiction was not available because the crash occurred on land, not over navigable water. Boeing appealed the decision under section 1442, which provides an exception to 28 U.S.C. § 1447(d), making most remands not reviewable.
Seventh Circuit Holds Admiralty Jurisdiction Exists
On appeal to the U. S. Court of Appeals for the Seventh Circuit, Boeing argued that it was “acting under” the Federal Aviation Administration when the company analyzed its autopilot and autothrottle systems. The Seventh Circuit disagreed, concluding that self-certification and regulation by a federal agency does not constitute “acting under” a federal agency. The appellate court noted that after its decision, it would be frivolous for Boeing or a similarly situated defendant to invoke section 1442 as a basis for removal.
The appellate court also determined that it could review the entire remand order in accordance with section 1447(d) because the case was removed, in part, pursuant to section 1442. After deciding it could review the entire remand order, the Seventh Circuit concluded that Boeing had established admiralty jurisdiction, reversing the Illinois district court’s decision and remanding with instructions to rescind the remand order and transfer the cases to the California district court for consolidation.
The appellate court determined that the plane had crossed the Pacific Ocean, a traditional maritime activity, moving passengers just like an ocean-going vessel would. Unlike the Illinois district court, the appellate court found that jurisdictional allegations control unless it is legally impossible for them to be true or to have the asserted consequences. The Seventh Circuit held that given the NTSB’s findings regarding pilot error, Boeing could show that the accident was caused by, or became inevitable because of, events that occurred over navigable water.
Practical Effects on Appellate Review
Leaders in the ABA Section of Litigation agree that this case may have practical effects on appellate review of remand orders. “The next battleground might be whether a private entity can remove under section 1442(a)(1) if that entity has the power to conclusively certify compliance with the law,” says Kelli Bills, Dallas, TX, a member of the Appellate Rules and Statutes Subcommittee of the Section of Litigation’s Appellate Practice Committee.
“The court’s refusal to allow Boeing to remove under section 1442(a)(1) has both legal and practical appeal under the facts,” advises Bills. “To hold otherwise would seemingly open the door to appellate review of removal orders in every case involving a business or individual that must certify compliance with the law. Such an outcome might well swallow the rule that removal orders are not reviewable on appeal absent narrow circumstances,” she adds.
Additionally, “the court’s opinion will likely increase the frequency with which defendants seek to remove to federal court based on admiralty jurisdiction,” says Bills. “The Seventh Circuit found jurisdiction by virtue of the fact that the airplane hit a seawall which was sufficient to invoke admiralty and maritime jurisdiction,” observes David Y. Loh, New York, NY, chair of the Hull and Machinery/Cargo Subcommittee of the Section’s Admiralty Litigation Committee. “The fact that the cause and injury do not both have to occur over navigable water raises some interesting line-drawing questions in these cases. Plaintiffs will now plead triggering events that occurred exclusively on land to avoid removal, while defendants seeking to remove to federal court will allege any plausible cause of injury that occurred over navigable waters,” Bills concludes.
Keywords: remand, admiralty jurisdiction, federal officer jurisdiction, removal, airplane
- » Junhong v. Boeing Co., No. 14-1825 (7th Cir. July 8, 2015).
- » Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).
- » Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249 (1972).
- » 28 U.S.C. § 1333(1).
- » 28 U.S.C. § 1407(a).
- » 28 U.S.C. § 1442(a)(1).
- » 28 U.S.C. § 1447(d).