Zhang Bin v. Boeing Company , 792 F.3d 805 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-1825 et al.
LU JUNHONG, et al.,
Plaintiffs-Appellees,
v.
THE BOEING COMPANY,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 13 C 7421 et al. — Harry D. Leinenweber, Judge.
____________________
ARGUED JUNE 26, 2014 — DECIDED JULY 8, 2015
____________________
Before WOOD, Chief Judge, and CUDAHY and
EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. On July 6, 2013, a Boeing 777
hit the seawall that separates the ocean from the end of a
runway at San Francisco International Airport. The plane’s
tail broke off, 49 persons sustained serious injuries, and
three of the passengers died, though the other 255 passen-
gers and crew aboard suffered only minor or no injuries. The
2 Nos. 14-1825 et al.
flight, operated by Asiana Airlines, had crossed the Pacific
Ocean from Seoul, Korea. The National Transportation Safe-
ty Board concluded that the principal cause of the accident
was pilot error: the pilots approached too low and too slow,
and by the time they attempted to add power and execute a
missed approach, it was too late. Only three seconds re-
mained until the impact, the plane was about 90 feet above
the ground, and the “airplane did not have the performance
capability to accomplish a go-around.” Aircraft Accident Re-
port: Descent Below Visual Glidepath and Impact with Seawall,
Asiana Airlines Flight 214 (NTSB June 24, 2014) at 126. The
Board believed that the pilots would have had to act eight or
nine seconds earlier (a total of 11 or 12 seconds before reach-
ing the seawall) to avoid hitting it. Id. at 84–85.
Suits brought in federal courts in California, and some
other district courts, were consolidated by the Panel on Mul-
tidistrict Litigation in the Northern District of California un-
der 28 U.S.C. §1407(a). Some passengers filed suit against
Boeing in state courts of Illinois, contending that the plane’s
autothrottle, autopilot, and low-airspeed-warning systems
contributed to the pilots’ errors. Boeing removed these suits
to federal court, asserting two sources of jurisdiction: admi-
ralty, 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 con-
solidated pretrial proceedings. But before receiving the Pan-
el’s formal directions to transfer the suits to California, the
district court remanded them for lack of subject-matter ju-
risdiction. 2013 U.S. Dist. LEXIS 175699 (N.D. Ill. Dec. 16,
2013), reconsideration denied, 2014 U.S. Dist. LEXIS 50210
(N.D. Ill. Apr. 11, 2014). The court concluded that Boeing did
Nos. 14-1825 et al. 3
not act as a federal officer for the purpose of §1442 and that
the tort occurred on land, when the plane hit the seawall, ra-
ther than over navigable water. Boeing appealed, as it is enti-
tled to do: removal under §1442 is an exception to 28 U.S.C.
§1447(d), which makes most remands non-reviewable. We
stayed the remand orders.
I
First in line is the question whether Boeing was entitled
to remove under §1442(a)(1), which offers a federal forum to
“[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”. Boeing
obviously is not the United States, a federal agency, or a fed-
eral officer, but it maintains that it is a “person acting under
[a federal] officer” because federal regulations require it to
assess and certify the airworthiness of its planes.
Boeing contends that it is “acting under” the Federal
Aviation Administration because “the FAA has granted Boe-
ing authority to use FAA-approved procedures to conduct
analysis and testing required for the issuance of type, pro-
duction, and airworthiness certifications for aircraft under
Federal Aviation Regulations. In carrying out those func-
tions, Boeing is subject to FAA control, and it acts as a repre-
sentative of the FAA Administrator.” Instead of sending a
cadre of inspectors to check whether every aircraft design
meets every particular of every federal rule and policy, the
FAA allows Boeing (and other firms) to do some of the
checking itself. In particular, Boeing maintains, FAA Order
8100.9A authorizes and requires it to analyze the adequacy
4 Nos. 14-1825 et al.
of its autopilot and autothrottle systems and certify that they
meet the regulatory requirements of 14 C.F.R. §25.1309.
It would be linguistically possible to call self-certification
a form of “acting under” the FAA. Yet all businesses must
ensure that they comply with statutes and regulations.
Sometimes they use the information internally, to decide
whether they must make changes. Sometimes they must cer-
tify compliance. For example, Boeing’s brief on this appeal
closes with three certifications: (1) that the brief was proper-
ly filed with the court and served on opposing counsel; (2)
that the portions subject to a length limit contain 11,882
words and that it meets the typeface requirements of Fed. R.
App. P. 32; and (3) that all of the materials required by Sev-
enth Circuit Rule 30 have been included in the appendix.
Would Boeing’s lawyers say that these certifications make
Boeing (or its law firm) persons “acting under” the judici-
ary? Yet certifications just demonstrate a person’s awareness
of the governing requirements and evince a belief in compli-
ance. Judges often call lawyers “officers of the court,” but no
one should think that this means that a lawyer can use §1442
to remove a state-law malpractice suit to federal court. A
figure of speech does not make someone a federal officer or
a person “acting under” one. See Howard v. St. Germain, 599
F.3d 455 (5th Cir. 2010) (treating a lawyer’s invocation of
§1442 as sanctionably frivolous).
This analysis implies that the right question is whether
being subject to governmental requirements is enough to
make a person one “acting under” the author of those regu-
lations, for the purpose of §1442. And we know from Watson
v. Philip Morris Cos., 551 U.S. 142 (2007), that being regulated,
even when a federal agency “directs, supervises, and moni-
Nos. 14-1825 et al. 5
tors a company’s activities in considerable detail” (id. at 145),
is not enough to make a private firm a person “acting un-
der” a federal agency.
Watson sued a cigarette manufacturer, contending that it
had cleverly manipulated the testing of its products to show
low levels of tar and nicotine. The manufacturer contended
that, to the contrary, it had tested exactly as federal officials
required and that any deviation from those protocols was
forbidden. As an entity merely following orders, the manu-
facturer asserted, it should be treated the same as the agency
that issued the orders. The Court observed that regulation is
ubiquitous, and much regulation can be called complex; if
following federal rules allowed litigation in federal court,
then all food and drug suits, and many others too, would be
removable. The Court thought that neither the language nor
the history of §1442 justified reading it to cover the activities
of regulated businesses. Instead, the Court concluded, per-
sons “acting under” federal officials are those who provide
aid in law enforcement, such as a local police officer who ac-
companies a federal agent on a drug raid and acts under the
federal agent’s direction.
This is where Boeing sees its opening. It does not just fol-
low regulations; it also certifies compliance with them and in
the process reduces the size of the federal bureaucracy. An
employee of the FAA who certified the airworthiness of Boe-
ing’s autopilot and autothrottle systems would be covered
by §1442. Since the FAA has conscripted the regulated com-
pany’s staff to perform those functions, Boeing maintains, it
too comes within §1442.
The problem with this argument is the one we stated at
the outset. Every regulated firm must use its own staff to
6 Nos. 14-1825 et al.
learn whether it has satisfied federal regulations. The staff of
an electric utility running a coal-fired generation station
must ensure that the equipment (much of it covered by de-
tailed regulations) meets the EPA’s specifications (and those
of the host state) and is in working order. The staff also must
monitor the stack gasses to ensure that the plant does not
emit too much sulfur dioxide or particulate matter. It is a de-
tail whether the firm sends the EPA a report (a “self-
certification”) of compliance, or instead sends reports only
when it finds non-compliance, or sends no reports at all and
waits for inspectors to appear. Likewise with safety appa-
ratus (and safety inspections) under the Occupational Safety
and Health Act and hundreds of other federal statutes. We
do not see any correlation between the required certifica-
tions and acting-under status. The Supreme Court in Watson
gave, as one example of someone obviously not “acting un-
der” a federal agency, a person filing a tax return. 551 U.S. at
152. Yet the taxpayer must interpret and apply a complex
statute and voluminous regulations, and the end of every
return is a certification that this has been done and all in-
come (and deductions) reported honestly. That process of
self-reporting enables the IRS to have a smaller workforce,
just as Boeing’s procedures cut the FAA’s payroll, but if tax-
payers (and lawyers who certify that their briefs comply
with rules) are not covered by §1442, neither is Boeing.
The list of people who have to certify things is exceeding-
ly long. For example, every employer with a federal contract
must certify that it has paid workers the prevailing wage.
See 29 C.F.R. §§ 3.3, 3.4; United States v. Clark, No. 14-1251
(7th Cir. May 28, 2015). We doubt that the Justices would see
a dispositive difference between certified compliance and
ordinary compliance. Indeed, Watson rejected an argument
Nos. 14-1825 et al. 7
by the cigarette maker that a federal agency hadn’t “just” re-
quired compliance with regulations but also had “delegated
authority” to the manufacturer to determine compliance
with those regulations. The Court thought that inadequate to
make the manufacturer a person “acting under” the agency.
551 U.S. at 154–57.
Boeing replies that the relation between cigarette manu-
facturers and the Federal Trade Commission (the agency that
regulated testing) was faux delegation, while its relation with
the FAA is real delegation. Boeing points to 49 U.S.C.
§44702(d)(1), which permits the FAA to conserve its re-
sources by transferring some checking and certification func-
tions to manufacturers, and the FAA used that power in Or-
der 8100.9A. Note, however, that this is still a power to certi-
fy compliance, not a power to design the rules for airworthi-
ness. The FAA permits Boeing to make changes to its gear
after finding that the equipment as modified meets the FAA’s
standards; it does not permit Boeing to use gear that meets
Boeing’s self-adopted criteria.
When discussing the possibility that delegation might
create “acting under” status, the Court mentioned rule mak-
ing rather than rule compliance as the key ingredient, 551
U.S. at 157, and the FAA’s order does not allow Boeing to
change substantive rules. That some of the FAA’s own rules
are general—for example, §25.1309(b) says that “airplane
systems and associated components, considered separately
and in relation to other systems, must be designed so that …
[t]he occurrence of any failure condition which would pre-
vent the continued safe flight and landing of the airplane is
extremely improbable”—does not confer on Boeing or other
8 Nos. 14-1825 et al.
manufacturers a power to make rules, as opposed to inter-
pret and apply them as best it can.
If the FAA gave Boeing a power to issue a conclusive certi-
fication of compliance, even though not to establish substan-
tive standards, the situation would come closer to what Wat-
son suggested might suffice. As far as we can see, however,
nothing that Boeing says is conclusive in the sense that a
court must treat its self-certification as establishing that its
flight-control systems do meet all federal rules. If the FAA
itself were to reach that conclusion, a court could not gainsay
the decision in a tort suit or under the Administrative Proce-
dure Act (unless, perhaps, the FAA’s decision were arbitrary
and capricious). Boeing’s self-certification does not have that
effect, however; it does not prevent either a court or the FAA
itself from taking a fresh look and reaching a contrary con-
clusion.
Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1428
(11th Cir. 1996), supports Boeing’s position. Boeing does not
identify, however, any post-Watson decision reaching a simi-
lar conclusion, for the FAA or any other agency that has del-
egated, not the power to make rules, but the power to certify
compliance with them. We think that Magnin is inconsistent
with Watson and cannot be considered authoritative. So we
agree with the district court that §1442 does not support re-
moval.
II
Plaintiffs maintain that, once we reach this conclusion,
the appeal is done. That’s because 28 U.S.C. §1447(d) reads:
“An order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise, ex-
Nos. 14-1825 et al. 9
cept that an order remanding a case to the State court from
which it was removed pursuant to section 1442 or 1443 of
this title shall be reviewable by appeal or otherwise.” Boe-
ing’s argument that §1442 supplies jurisdiction having been
rejected, plaintiffs contend, there is nothing more for a court
of appeals to do, for a district court’s conclusion that federal
jurisdiction does not exist is unreviewable. See, e.g., Kircher
v. Putnam Funds Trust, 547 U.S. 633 (2006); Gravitt v. South-
western Bell Telephone Co., 430 U.S. 723 (1977).
Boeing offers a different take on the scope of federal ju-
risdiction. It observes that when a suit is “removed pursuant
to section 1442” (as this was) the district court’s “order” of
remand is reviewable on appeal. To say that a district court’s
“order” is reviewable is to allow appellate review of the
whole order, not just of particular issues or reasons. So Yama-
ha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996),
holds with respect to 28 U.S.C. §1292(b), which permits a
court of appeals to review an interlocutory order if the dis-
trict court certifies that particular issues meet the statutory
requirements. The Court held that although the district
judge must find that important issues are presented and that
their resolution could advance the case’s disposition, once
the appeal has been accepted the court of appeals reviews
the “order” rather than just the issues. See also Edwardsville
National Bank & Trust Co. v. Marion Laboratories, Inc., 808 F.2d
648, 650 (7th Cir. 1987) (when a statute provides appellate
jurisdiction over an order, “the thing under review is the or-
der”, and the court of appeals is not limited to reviewing
particular “questions” underlying the “order”). Boeing
maintains that §1447(d) should be understood the same way.
10 Nos. 14-1825 et al.
And so we have understood the relation between §1447(d)
and an appeal that is an exception to its limit on review of
remands. In Brill v. Countrywide Home Loans, Inc., 427 F.3d
446 (7th Cir. 2005), a district court remanded a class action
that had been removed by a defendant that invoked the
Class Action Fairness Act. The judge held that that Act did
not authorize the removal and that the case was otherwise
not within the scope of federal jurisdiction, and remanded.
The Class Action Fairness Act authorizes appellate review of
remands of cases that had been removed under its auspices.
A court of appeals may accept an appeal of “an order of a
district court” that has remanded after finding that the Act
does not permit removal. 28 U.S.C. §1453(c)(1). After discuss-
ing the propriety of removal under the Act, we went on to
decide that the suit also came within federal-question juris-
diction. That conclusion was consistent with §1447(d), Brill
held, because, once the district court’s “order” was before
the court of appeals, all of the reasons the district court gave
in support of that order were reviewable. 427 F.3d at 451–52.
Brill relied on Yamaha Motor for this conclusion.
Section 1447(d) itself authorizes review of the remand
order, because the case was removed (in part) pursuant to
§1442. Brill establishes that once an appeal of a remand “or-
der” has been authorized by statute, the court of appeals
may consider all of the legal issues entailed in the decision to
remand.
Once again another court of appeals has come to a con-
trary conclusion. Jacks v. Meridian Resource Co., 701 F.3d 1224,
1229 (8th Cir. 2012), holds that, even when a statute author-
izes review of a remand order, only the issue behind the ex-
ception to §1447(d) is reviewable; consideration of other is-
Nos. 14-1825 et al. 11
sues is blocked by §1447(d), the court stated. For this propo-
sition, it cited—nothing. Jacks did not discuss the signifi-
cance of the statutory reference to review of an “order.” It
did not mention Yamaha Motor. It did not mention Brill. And
the omissions are understandable. The court pointed out,
701 F.3d at 1228, that neither side had cited authority or
made a coherent argument. Jacks unknowingly created a
conflict with Brill. The leading treatise supports Brill’s ap-
proach:
Review should … be extended to all possible grounds for re-
moval underlying the order. Once an appeal is taken there is
very little to be gained by limiting review; the only plausible
concern is that an expanded scope of review will encourage de-
fendants to rely on strained arguments under [§1442 or] §1443 in
an effort to support appeal on other grounds. Sufficient sanc-
tions are available to deter frivolous removal arguments that this
fear should be put aside against the sorry possibility that experi-
ence will give it color.
Edward H. Cooper, 15A Wright & Miller Federal Practice &
Procedure §3914.11 (2014 rev.) (citations omitted).
We recognize that Thermtron Products, Inc. v. Hermansdor-
fer, 423 U.S. 336 (1976), and a few other decisions that went
out of their way to find exceptions to §1447(d), are not ad-
mired these days at the Supreme Court. The holding of
Thermtron—that a case remanded for reasons outside the
scope of §1447(c) can be reviewed on appeal despite
§1447(d)—is not supported by the text of §1447(d) and does
not fit comfortably with the current Justices’ approach to
statutory interpretation. Decisions such as Kircher, which di-
rect courts of appeals not to go behind a judge’s stated rea-
son for a remand, even if it seems clear that some other rea-
son is responsible (or that the judge used words imprecise-
12 Nos. 14-1825 et al.
ly), show the Court’s restiveness with the latitude Thermtron
took with the statutory language. See also Powerex Corp. v.
Reliant Energy Services, Inc., 551 U.S. 224, 229–30 (2007)
(strongly suggesting that Thermtron was wrongly decided);
Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 641–42,
642–43 (2009) (concurring opinions disparaging Thermtron).
Our application of Yamaha Motor and Brill to the word
“order” in §1447(d) does not rely on Thermtron’s approach
but is entirely textual. The Court remarked in Kircher, 547
U.S. at 641 n.8, that Congress has on occasion made the rule
of §1447(d) inapplicable to particular “orders”—and for this
the Court cited, among other statutes, §1447(d) itself. We
take both Congress and Kircher at their word in saying that,
if appellate review of an “order” has been authorized, that
means review of the “order.” Not particular reasons for an
order, but the order itself.
This is not a matter of pendent appellate jurisdiction here
any more than in Yamaha Motor. There is only one order and
only one appellant, while pendent appellate jurisdiction in-
volves an extra order, an extra appellant, or both. See Swint
v. Chambers County Commission, 514 U.S. 35 (1995); Clinton v.
Jones, 520 U.S. 681, 707 n.41 (1997); Allman v. Smith, No. 14-
1792 (7th Cir. June 24, 2015), slip op. 3–4. If one “order” is
the thing appealed, as Yamaha Motor and Brill concluded,
nothing is “pendent” when considering all of the issues that
led to the order. This is the same as the proposition that an
appeal from a district court’s order denying a Rule 59 motion
brings up the whole judgment, without the need for a sepa-
rate appeal of the original judgment. See, e.g., Foman v. Da-
vis, 371 U.S. 178, 181 (1962). To appeal an “order” is to pre-
Nos. 14-1825 et al. 13
sent all issues that led to that order, without entailing any
element of “pendent” jurisdiction.
If we go beyond the text of §1447(d) to the reasons that
led to its enactment, we reach the same conclusion. The Su-
preme Court has said that §1447(d) was enacted to prevent
appellate delay in determining where litigation will occur.
See, e.g., Kircher, 547 U.S. at 640; United States v. Rice, 327 U.S.
742, 751 (1946). Since the suit must be litigated somewhere, it
is usually best to get on with the main event. See also, e.g.,
Van Cauwenberghe v. Biard, 486 U.S. 517 (1988). But once Con-
gress has authorized appellate review of a remand order—as
it has authorized review of suits removed on the authority of
§1442—a court of appeals has been authorized to take the
time necessary to determine the right forum. The marginal
delay from adding an extra issue to a case where the time for
briefing, argument, and decision has already been accepted
is likely to be small.
Some litigants may cite §1442 or §1443 in a notice of re-
moval when all they really want is a hook to allow appeal of
some different subject. But a frivolous removal leads to sanc-
tions, potentially including fee-shifting, see 28 U.S.C.
§1447(c), and after today it would be frivolous for Boeing or
a similarly-situated defendant to invoke §1442 as a basis of
removal. See Martin v. Franklin Capital Corp., 546 U.S. 132
(2005); Fed. R. App. P. 38. What’s more, a court may resolve
frivolous interlocutory appeals summarily. See Abney v.
United States, 431 U.S. 651, 662 n.8 (1977). A district judge
may, after certifying that an interlocutory appeal is frivolous,
proceed with the litigation (including a remand), see Apostol
v. Gallion, 870 F.2d 1335 (7th Cir. 1989), and if the appeal is
14 Nos. 14-1825 et al.
frivolous the court of appeals will deny a motion for a stay,
so the case can continue without delay.
III
The relation between aviation accidents and the admiral-
ty jurisdiction has been fraught ever since Executive Jet Avia-
tion, Inc. v. Cleveland, 409 U.S. 249 (1972), modified the for-
mer situs requirement and asked, not where a wreck ended
up (land or water), but whether the events leading to the ac-
cident have enough connection to maritime activity. A plane
had taken off from an airport adjoining Lake Erie, collided
with a flock of gulls that gathered at the garbage dump off
the end of the runway, settled back to earth in the heap of
garbage, and was carried by its inertia into the lake, where it
sank. The Justices thought that this had nothing to do with
maritime affairs, even though the gulls may have made their
living eating fish (in addition to refuse), and held the admi-
ralty jurisdiction unavailable.
But the approach articulated in Executive Jet has caused
problems. The price of throwing out one case that did not
seem connected to maritime commerce was to unsettle the
rules for many other cases with stronger connections. Sisson
v. Ruby, 497 U.S. 358 (1990), suggested that the Justices had
begun to rue the Executive Jet decision, and though it was not
overruled the Court did hold that damage caused by a fire in
the washer/dryer of a yacht tied up at a dock was within the
admiralty jurisdiction. A few years later, the Court respond-
ed to the Great Chicago Flood—a hole in the bottom of the
Chicago River introduced water to tunnels that carried it to
basements throughout the Loop, causing injury inland—by
holding that this event, too, was within the admiralty juris-
diction because the cause was maritime. Jerome B. Grubart,
Nos. 14-1825 et al. 15
Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).
Again the result of Executive Jet survived, though the appli-
cable legal standard changed.
The parties and the district court read the interaction of
these decisions (and there are others that need not be men-
tioned) in three ways. Plaintiffs maintain that aviation acci-
dents are outside the admiralty jurisdiction (unless perhaps
a flying boat or float plane is involved); as fallbacks they
contend that when the injury occurs on land there cannot be
admiralty jurisdiction and that in any event a defendant
cannot remove under the admiralty jurisdiction. Boeing con-
tends that admiralty jurisdiction is available when an acci-
dent has a maritime cause, which Boeing understands to
mean a cause that occurred while the plane was over navi-
gable waters. The district court did not accept any of these
approaches. Instead it held that admiralty jurisdiction is
available only when an accident becomes inevitable while
the plane is over water.
We start with the inevitability standard, which as far as
we can tell lacks a provenance in the Supreme Court’s deci-
sions or in any appellate opinion. And it has the further
problem of not supporting the judgment, because the choice
between “cause” (Boeing’s argument) and “inevitable cause”
(the district court’s holding) cannot affect the outcome.
As the district judge saw things, until the crash the pilots
had only to rev the engines, pull up on the yoke, and execute
a missed approach. Their failure to do this caused the acci-
dent, but hitting the seawall never became inevitable over
water. When Boeing asked the district judge to reconsider,
contending that the record did not support the judge’s un-
derstanding of the facts, the judge replied that the record did
16 Nos. 14-1825 et al.
not show beyond all doubt that the plane was doomed at
any moment while it was over navigable water.
Both the district judge’s opinion and his order denying
reconsideration were issued before the NTSB released its re-
port, which concluded that by 10 seconds before impact a
collision was certain; a 777 aircraft lacks the ability to accel-
erate and climb fast enough, no matter what the pilots did in
the final 10 seconds. This means that, while the plane was
over San Francisco Bay (part of the Pacific Ocean), an acci-
dent became inevitable. And the plaintiffs’ own theory of li-
ability pins a portion of the blame on Boeing because, about
4.5 nautical miles from the seawall, the autothrottle system
disengaged—apparently without the pilots recognizing
what had happened—and caused the plane to descend faster
than the pilots appreciated. NTSB Report at 79–84.
The autothrottle system did exactly what it had been
programmed to do. We have nothing to say about whether it
should have been programmed differently, whether its de-
sign played a role in the accident, or whether Boeing should
have done more to educate airlines (and their pilots) about
how it would react when pilots issued the commands that
Asiana’s pilots did on the descent into San Francisco. But, if
Boeing is liable at all, it must be because something about
how this system was designed or explained created an unac-
ceptable risk of an accident—and the system’s performance
(including the interaction between pilots and the automation
design) occurred before the plane hit the seawall.
The district judge may have thought that federal jurisdic-
tion depends on a high degree of certainty that jurisdictional
facts exist. That seems to be the point of an “inevitability”
approach, coupled with insistence on proof that relevant
Nos. 14-1825 et al. 17
facts and inferences be established beyond dispute. Yet the
rules are otherwise. Jurisdictional allegations control unless
it is legally impossible for them to be true (or to have the as-
serted consequences). See St. Paul Mercury Indemnity Co. v.
Red Cab Co., 303 U.S. 283, 289 (1938) (asking whether it “ap-
pears to a legal certainty” that the plaintiff cannot satisfy a
jurisdictional requirement). That’s equally true of a defend-
ant’s allegations in support of removal. See Dart Cherokee Ba-
sin Operating Co. v. Owens, 135 S. Ct. 547, 553–54 (2014). Giv-
en the NTSB’s findings, it is possible for Boeing to show that
this accident was caused by, or became inevitable because of,
events that occurred over navigable water.
Is that sufficient? Grubart says that admiralty jurisdiction
is available when an “injury suffered on land was caused by
a vessel on navigable water”, if the cause bears a “substan-
tial relationship to traditional maritime activity.” 513 U.S. at
534 (internal quotation marks omitted). This plane crossed
the Pacific Ocean, a traditional maritime activity, and the
cause of the accident likely occurred over the water. But an
airplane is not a “vessel” and it was “over” rather than “on”
the water. Does that make a difference?
Not functionally. An airplane, just like an ocean-going
vessel, moves passengers and freight from one continent to
another. It crosses swaths of the high seas that are outside of
any nation’s territory, and parts of the seas adjacent to the
United States but outside any state’s territory. It is a tradi-
tional, and important, function of admiralty law to supply a
forum and a set of rules for accidents in international com-
merce. And Executive Jet itself said as much, though with a
hedge, in remarking that a trans-ocean flight “might be
thought to bear a significant relationship to traditional mari-
18 Nos. 14-1825 et al.
time activity because it would be performing a function tra-
ditionally performed by waterborne vessels”. 409 U.S. at 271.
Before the Wright Brothers, admiralty jurisdiction neces-
sarily was limited to vessels on navigable waters. Perhaps
the invention of the submarine (under rather than on the wa-
ter) was its first logical extension. When aircraft came along,
courts had a lot of difficulty classifying them for many pur-
poses. See Arthur R. Miller, 14AA Wright & Miller Federal
Practice & Procedure §3679 (2014 rev.). But just as judges have
not doubted that Congress can establish an air force even
though the Constitution mentions only an army and a navy,
so judges have concluded that airplanes over navigable wa-
ters should be treated the same as vessels—when a connec-
tion to maritime activity exists, as it didn’t in Executive Jet.
Executive Jet treated it as settled that airplanes are within
the scope of the Death on the High Seas Act, 46 U.S.C.
§30302, which brings within the admiralty jurisdiction any
death that is “caused by wrongful act, neglect, or default oc-
curring on the high seas” more than three nautical miles
from shore. 409 U.S. at 263–64. Offshore Logistics, Inc. v. Tallen-
tire, 477 U.S. 207 (1986), later applied that statute when a hel-
icopter went down in the ocean. If accidents that occur be-
cause 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 re-
quirements articulated in Grubart. For 28 U.S.C. §1333(1),
which creates admiralty jurisdiction, does not mention ves-
sels or demand that the cause or injury be “on” the water. It
says only that district courts have jurisdiction of: “Any civil
case of admiralty or maritime jurisdiction, saving to suitors
in all cases all other remedies to which they are otherwise
Nos. 14-1825 et al. 19
entitled.” This is close to circular. District courts have admi-
ralty jurisdiction in “[a]ny civil case of admiralty or maritime
jurisdiction”. That leaves only the Grubart standard, which
as we have said is satisfied functionally.
True, we have in this litigation an accident apparently
caused by events over water, but producing injury on land,
and there’s no tort without injury. Yet neither §1333(1) nor
§30302 requires the whole tort to occur on the water. Section
30302 speaks of a cause on the water (or, after Offshore Logis-
tics, over the water), and so does Grubart—for even if admi-
ralty did not initially cover water-based causes of injury on
land, it has done so ever since the Extension of Admiralty
Jurisdiction Act, 46 U.S.C. §30101, on which Grubart relied to
bring harm from the flooding of Chicago’s basements within
admiralty jurisdiction.
We are not saying that the Death on the High Seas Act
applies to these cases. The plaintiffs do not rely on it. Section
30307(c) creates an exception to the Act for deaths that occur
within 12 nautical miles of shore. Nor are we saying that a
flight scheduled to take off and land within the United States
drifts in and out of admiralty as it crosses lakes and rivers
along the way. The Justices remarked in Executive Jet that for
“flights within the continental United States, which are prin-
cipally over land, the fact that an aircraft happens to fall in
navigable waters, rather than on land, is wholly fortuitous.”
409 U.S. at 266. That opinion wrapped up this way: “we hold
that, in the absence of legislation to the contrary, there is no
federal admiralty jurisdiction over aviation tort claims aris-
ing from flights by land-based aircraft between points within
the continental United States.” Id. at 274.
20 Nos. 14-1825 et al.
But Asiana 214 was a trans-ocean flight, a substitute for
an ocean-going vessel—as flights from the contiguous Unit-
ed States to and from Alaska, Hawaii, and overseas territo-
ries also would be—and thus within the scope of Executive
Jet’s observation that this situation “might be thought to bear
a significant relationship to a traditional maritime activity”.
Id. at 271. The Supreme Court’s holding in Offshore Logistics
that an accident caused by problems in airplanes above water
should be treated, for the purpose of §30302, the same as an
accident caused on the water carries the implication that the
general admiralty jurisdiction of 28 U.S.C. §1333(1) also in-
cludes accidents caused by problems that occur in trans-
ocean commerce. Admiralty then supplies a uniform law for
a case that otherwise might cause choice-of-law headaches.
Most appellate decisions on this subject since Executive Jet
agree. See Miller v. United States, 725 F.2d 1311, 1315 (11th
Cir. 1984) (flight from Bahamas to Florida is within admiral-
ty jurisdiction); Williams v. United States, 711 F.2d 893, 896
(9th Cir. 1983) (flight from California to Hawaii is within
admiralty jurisdiction); Roberts v. United States, 498 F.2d 520,
524 (9th Cir. 1974) (flight from California to Vietnam is with-
in admiralty jurisdiction). The one exception, United States
Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., 582
F.3d 1131 (10th Cir. 2009) (flight between Japan and Russia),
stressed that the flight was not commercial; maybe the Tenth
Circuit would find admiralty jurisdiction for commercial
aviation such as Asiana 214. It is enough for us to say that
we accept the majority position.
Plaintiffs tell us that, even if the events come within
§1333(1), Boeing still was not allowed to remove the suits
under 28 U.S.C. §1441(a). Yet that section permits removal of
Nos. 14-1825 et al. 21
any suit over which a district court would have original ju-
risdiction—and, if these suits are within the admiralty juris-
diction, that condition is satisfied. Plaintiffs’ brief asserts:
“admiralty jurisdiction does not provide a basis for removal
absent an independent basis for federal jurisdiction. Oklaho-
ma ex rel. Edmondson v. Magnolia Marine Transp. Co., 359 F.3d
1237, 1241 (10th Cir. 2004) (no removal of admiralty actions
in the absence of independent basis for removal); 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).” There
plaintiffs stop; they don’t explain why.
The appellate cases cited in this passage rely on Romero v.
International Terminal Operating Co., 358 U.S. 354 (1959),
which took the saving-to-suitors clause at the end of §1333(1)
to mean that plaintiffs who elect to litigate a common-law
maritime claim in state court are entitled to keep their pre-
ferred forum, when the defendant is a citizen of the forum
state, unless some other jurisdictional grant also applies and
permits removal. To put this otherwise, Romero held that an
admiralty claim under §1333 is not a federal-question claim
under §1331, for federal questions always have been remov-
able without regard to the defendant’s citizenship or resi-
dence.
Oddly, however, plaintiffs do not mention the saving-to-
suitors clause and do not cite Romero or any similar decision
by the Supreme Court. Perhaps they have left them out be-
cause they no longer provide assistance. When the Supreme
Court decided Romero, and when the courts of appeals de-
cided the four cases on which plaintiffs rely, 28 U.S.C.
§1441(b) said this:
22 Nos. 14-1825 et al.
Any civil action of which the district courts have original juris-
diction founded on a claim or right arising under the Constitu-
tion, treaties or laws of the United States shall be removable
without regard to the citizenship or residence of the parties. Any
other such action shall be removable only if none of the parties in
interest properly joined and served as defendants is a citizen of
the State in which such action is brought.
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 jurisdic-
tion (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. But in 2011 Congress amended §1441(b) to
read:
(b) REMOVAL BASED ON DIVERSITY OF CITIZENSHIP.—(1)
In determining whether a civil action is removable on the basis
of the jurisdiction under section 1332(a) of this title, the citizen-
ship of defendants sued under fictitious names shall be disre-
garded. (2) A civil action otherwise removable solely on the basis
of the jurisdiction under section 1332(a) of this title may not be
removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action
is brought.
Federal Courts Jurisdiction and Venue Clarification Act of
2011, §103, Pub. L. No. 112-63, 125 Stat. 759. This amendment
limits the ban on removal by a home-state defendant to suits
under the diversity jurisdiction.
Perhaps it would be possible to argue that the saving-to-
suitors clause itself forbids removal, without regard to any
language in §1441. But plaintiffs, who have not mentioned
the saving-to-suitors clause, do not make such an argument.
We do not think that it is the sort of contention about sub-
Nos. 14-1825 et al. 23
ject-matter jurisdiction that a federal court must resolve even
if the parties disregard it. Our conclusion that §1333(1) sup-
plies admiralty jurisdiction shows that subject-matter juris-
diction exists. Plaintiffs thus could have filed these suits di-
rectly in federal court (as many victims of this crash did). If
the saving-to-suitors clause allows them to stay in state court
even after the 2011 amendment, they are free to waive or for-
feit that right—which given the scope of §1333(1) concerns
venue rather than subject-matter jurisdiction. Boeing there-
fore was entitled to remove these suits to federal court.
IV
One observation in closing. Our conclusions about admi-
ralty jurisdiction, and the appellate-jurisdiction ruling that
allowed us to consider the admiralty question, are compati-
ble with the Multiparty, Multiforum Trial Jurisdiction Act of
2002, codified in 28 U.S.C. §1369 and §1441(e). This statute
supplies federal jurisdiction when an accident with multi-
state features entails the deaths of 75 or more persons. Like
most other grants of federal jurisdiction, it does not say that
it is an exclusive means to federal court. A law granting one
sort of jurisdiction does not implicitly negate others. See,
e.g., Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691
(2003). No one doubts, for example, that if an air crash has
only one victim, that person’s estate could sue the plane’s
manufacturer under the diversity jurisdiction, 28 U.S.C.
§1332, if they were citizens of different states. Likewise with
the admiralty jurisdiction. Federal litigation in most air
crashes will continue to rely on the diversity jurisdiction (po-
tentially including the Class Action Fairness Act, §1332(d), if
more than 100 injured persons pursue a class action or a
mass action) or the Multiparty, Multiforum Trial Jurisdiction
24 Nos. 14-1825 et al.
Act; adding the possibility of admiralty jurisdiction when
the cause of an accident occurs during a trans-ocean flight
does not change the forum in which most aircraft suits are
litigated.
The district court’s decision is reversed, and the case is
remanded with instructions to rescind the remand orders
and transfer these cases to the Northern District of California
for consolidated pretrial proceedings under 28 U.S.C. §1407,
consistent with the decision of the Panel on Multidistrict Lit-
igation.