Seventh Circuit: "Frivolous" Argument Saves Jurisdiction

by Foley & Lardner LLP
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The Seventh Circuit issued an important opinion by Judge Easterbrook today, Lu Junhong v. Boeing Co., No. 14-1825, a clump of cases that arose after an Asiana Airlines jet manufactured by Boeing struck a seawall while landing on a runway at San Francisco International Airport two years ago, at the end of a flight from Seoul. The opinion holds that tort actions arising out of transoceanic flights will often (perhaps usually) fall within the federal district courts’ admiralty jurisdiction, under 28 U.S.C. § 1333(1).

While Wisconsin is next to a couple of the Great Lakes, so that that holding may affect some future tort case here, the aspect of the opinion that we want to comment on is a question of appellate jurisdiction with wider potential significance. To reach the admiralty jurisdiction issue, the Seventh Circuit had to get past the prohibition in 28 U.S.C. § 1447(d) of appellate review of remand orders (“not reviewable on appeal or otherwise”). The cases against Boeing had been filed in Illinois state courts and removed to the district court in Chicago, which remanded them, having determined that there was no jurisdiction under either the admiralty statute or 28 U.S.C. § 1442(a)(1). The latter statute allows removal from state court of a civil action brought against an officer of the United States or one of its agencies for acts under color of office and further extends to “any person acting under that officer.” Boeing’s argument was that it was “acting under” the Federal Aviation Administration when it analyzed and tested the autopilot and autothrottle system that the plaintiffs claimed failed to function properly.

The Seventh Circuit had clear jurisdiction to review remand of a § 1442 removal order because such orders are expressly excepted from the prohibition in § 1447(d). And the court had no difficulty affirming the district court’s decision that § 1442 did not confer federal jurisdiction—that Boeing is not a person “acting under” the FAA in this situation. Indeed, the court said, after today’s decision, it would be frivolous for a party in Boeing’s situation to remove a case based on § 1442. (Slip op. at 13.) But what about the admiralty argument? Can the Seventh Circuit, whose jurisdiction to review the remand order depends entirely on the § 1442 ground, also review the lower court’s rejection of admiralty jurisdiction?

Yes, because the exception in § 1447(d) for remand of § 1442 removals allows the court of appeals to review “an order remanding a case to the State court,” and that gives the court authority to review the entire order. So the court held in Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005), in which it reviewed a remand order under the Class Action Fairness Act exception to § 1447(d)’s prohibition (found in 28 U.S.C. § 1453(c)(1)) and determined that the district court also had federal-question jurisdiction, under 28 U.S.C. § 1331. And so here. Boeing was able to avoid being sent back to state court because it made the right frivolous argument for removal.

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