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Lu Junhong v. Boeing Co.

United States Court of Appeals for the Seventh Circuit

June 26, 2014, Argued; July 8, 2015, Decided

Nos. 14-1825 et al.

Opinion

 [*807]  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 passengers and crew aboard suffered only minor or no injuries. The flight, operated by Asiana Airlines, had crossed the Pacific Ocean from Seoul, Korea. The National Transportation Safety Board concluded that the principal cause of the accident was pilot error: the pilots [**2]  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 remained 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 Report: 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 reaching 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 Multidistrict Litigation in the Northern District of California under 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  [*808]  systems contributed to the pilots' errors. Boeing removed these suits to federal court, asserting two sources of jurisdiction: admiralty, plus federal officials' right to have claims against them resolved by federal courts. 28 U.S.C. §§ 1333, 1442. The Panel on Multidistrict Litigation [**3]  then decided that these suits, too, should be transferred to California to participate in the consolidated pretrial proceedings. But before receiving the Panel's formal directions to transfer the suits to California, the district court remanded them for lack of subject-matter jurisdiction. 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 not act as a federal officer for the purpose of §1442 and that the tort occurred on land, when the plane hit the seawall, rather than over navigable water. Boeing appealed, as it is entitled 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.

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 federal officer, but it maintains [**4]  that it is a "person acting under [a federal] officer" because federal regulations require it to assess and certify the airworthiness of its planes.

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792 F.3d 805 *; 2015 U.S. App. LEXIS 11733 **; 2015 AMC 1817

LU JUNHONG, et al., Plaintiffs-Appellees, v. THE BOEING COMPANY, Defendant-Appellant.

Prior History:  [**1] 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.

Lu v. Boeing Co., 2014 U.S. Dist. LEXIS 50210 (N.D. Ill., Apr. 11, 2014)Yang v. Boeing Co., 2013 U.S. Dist. LEXIS 175699 (N.D. Ill., Dec. 16, 2013)

CORE TERMS

admiralty jurisdiction, removal, regulations, flight, plane, maritime, district court, compliance, pilots, suits, court of appeals, certify, admiralty, federal court, manufacturer, federal jurisdiction, navigable waters, certifications, aircraft, airplane, vessel, frivolous, seawall, cases, federal official, aviation, meets, district judge, federal agency, class action

Civil Procedure, Removal, Specific Cases Removed, Cases Involving Federal Officers, Postremoval Remands, Appellate Review, Preliminary Considerations, Jurisdiction, General Overview, Admiralty & Maritime Law, Practice & Procedure, Constitutional Authority, Statutory Sources, Diversity of Citizenship